Loading...
HomeMy WebLinkAboutPR 17511: CONSTRUCTION OF AUTO SCRUBBER TRANSIT DEPARTMENT MEMORANDUM TO: Floyd T. Johnson, City Manager and City Council FROM: Debra D. Ambroise, Transit Planner SUBJECT: P.R. No. 17511; Construction of Auto Scrubber DATE: February 4, 2013 RECOMMENDATION: The Transit Department desires to engage GADV Inc., dba L &L Construction Co., of Beaumont, Texas for the construction for the Transit Auto Scrubber Facility (Bus Wash). BACKGROUND: The objective of this project is to construct the Auto Scrubber Facility (Bus Wash); the auto wash will be exclusive to transit vehicles only. Transit is federally subsidized, so, the contractor will need to be knowledgeable of and conform to all Federal Transit Administration (FTA) procurement procedures and regulations. BUDGETARY/FISCAL EFFECT: Funding for construction of the Auto Bus Wash Facility has been allocated through Federal Grant No. TX96 -X042, ALI number 11.44.02; funds will be available in account no. 402 -1508- 561.82 -00. STAFFING/EMPLOYEE EFFECT: Currently, all transit vehicles are being hand washed. In accordance to FTA rules and regulations, all vehicles should be properly and thoroughly cleaned to maintain the livability of the buses. The Auto Bus Wash will provide a more thorough and efficient cleaning of transit vehicles, which will sustain their useful life. SUMMARY: The Transit Department recommends that the City Manager and Council approve Proposed Resolution No. 17511 for the construction of the Auto Bus Wash Facility. Debra D. mbroise, Transit Planner P.R. No. 17511 2/4/2013 DDA Page 1 of 3 RESOLUTION NO. A RESOLUTION AUTHORIZING THE EXECUTION OF A CONTRACT BETWEEN THE CITY OF PORT ARTHUR AND GADV INC., DBA L &L GENERAL CONTRACTORS OF BEAUMONT, TEXAS FOR THE CONSTRUCTION OF THE TRANSIT AUTO SCRUBBER FACILITY IN AN AMOUNT NOT TO EXCEED $791,000 (ACCOUNT NO. 402 -1508- 561.82 -00, GRANT NOS. TX -96 -X042, TX -96 -X040, TX -90 -X859, ALI NOS. 11.44.02 AND 11.44.03). WHEREAS, per Resolution No. 12 -563, the City Council approved a contract between the City and Nelson Collaborative for the engineering and design of an auto scrubber (bus wash) facility for the Transit Department; and, WHEREAS, thereafter, the City advertised for the construction of said facility in the Port Arthur News on January 13, 2013 and on January 20, 2013; and, WHEREAS, on February 8, 2013, six (6) bids were received, opened, and evaluated by the Purchasing Department; and, WHEREAS, GADV Inc., dba L &L General Contractors placed the low bid in the amount of $811,000; and, WHEREAS, the line item for Super Graphics was deleted from the specifications, which reduced all of the bids by $20,000; and, WHEREAS, as a result of the deletion, the bid submitted by GADV Inc., dba L &L General Contractors was reduced to $791,000 as shown on the bid tab and letter of recommendation attached hereto as (Exhibit "A "); and, P.R. No. 17511 2/4/2013 DDA Page 2 of 3 WHEREAS, all federal forms have been executed in accordance with the appropriate sections of Title 49 of the United States Code and other relevant Federal Transit Administration (FTA) rules and regulations, attached in Exhibit "C." NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PORT ARTHUR: THAT, the City Council of the City of Port Arthur hereby awards the contract for construction of the Transit Auto Scrubber Facility (Bus Wash) to the lowest and most responsible bidder to wit: GADV Inc., dba L &L General Contractors of Beaumont, Texas. THAT, the City Manager of the City of Port Arthur is hereby authorized and directed to execute on behalf of the City, a contract in the amount of $791,000 between the City of Port Arthur and GADV Inc., dba L &L General Contractors in substantially the same form as attached as Exhibit `B ". THAT, a copy of the caption of this Resolution be spread upon the Minutes of the City Council. READ, ADOPTED AND APPROVED this the day of March, A.D. 2013, at a Regular Meeting of the City Council of Port Arthur Texas, by the following vote: AYES: Mayor: Councilmembers: NOES: P.R. No. 17511 2/4/2013 DDA Page 3 of 3 Deloris Prince, Mayor ATTEST: Sherri Bellard, City Secretary APPROVED AS T 1 FORM: Ott Val Tizeno, Cit 'Attorney APPROVED FOR ADMINISTRATION: Floyd T. Johnson, City Manager Colleen R ssell, Dire t r of Transit i ldtete.LCall■ — Deborah Echols, Director of Finance Approved As To Availability of Funds Account No. 402 -1508- 561.82 -00 Project No. TX96 -X042 ALI No. 11.44.02 • (!* ?Lzt_ , L. c, C 1 Li„ _/ Shawna Tubbs, Purchasing Manager EXHIBIT "A" &2? . 2+ : \� {� . } \ } � \ 7/f \ \ \ } � « , 9 \ \ \ ) ) Eg - ) . \ 9 g $ $ ) I u } § _ ; \ ( z { 5 o CO ° { / « § ( 2 'SS e & ( § O \ ! ( v E ; § ! § or w ( , f ! : , i ° o IA The Nelson Collaborative 1=:t;t,tpe r£ii4} ,'r q ".astt Min rzatpt7wgt ( _ •; 1+. o ta, rl?a;. =r( February 12, 2013 VIA: russellc @portarthur.net Ms. Colleen Russell City of Port Arthur Transit Director 444 4 Street Port Arthur, Texas 77641 -1089 RE: New Transit Bus Wash City of Port Arthur, Texas TNC ProjectNo.: NO301 -C12 -003 Dear Ms. Russell: A Pre -Bid Meeting was held on Thursday, January 24, 2013 to review the above referenced project with prospective bidders. During that meeting a total of Fourteen (14) general contractors were in attendance. Refer to the attached Sign -in Sheet. On Friday, February 8, 2013, Bid Proposals were received in the City Council Chambers of the City of Port Arthur for the New Transit Bus Wash. A total of six (6) bids were received and reviewed at 10:00 am. All bids received are summarized on the attached Bid Tabulation Sheet. : The Nelson Collaborative recommends to the City of Port Arthur Texas City Council, to award the contract for the construction of the New Transit Bus Wash to L & L General Contractors in the amount of $791,000.00. The recommended Contract Sum and Construction Summary are listed below: Base Proposal: $811,000.00 Cost Saving Deductions: $20,000.00 Calendar Days: 160 TOTAL RECOMMENDED CONTRACT SUM $ 791,000.00 L & L General Contractors the recommended Proposer is a Beaumont based general contractor that has executed numerous construction projects in the Port Arthur and the Beaumont area. Our office feels they are well qualified to successfully execute the requirements of this contract. We would like to express our sincere thanks to you, the City Council, and all of the city of Port Arthur staff and other departments for the assistance we received during the bidding phase of this project. We look forward to a successful construction period. Sincerely, ej Timothy Barnes, AIA Director of Architecture Email: timothy.barnes @propmg.com xx\ \NIA \Nelson (ollaI, rarive \CLIP:N IS \Gins ■fPort Arthur - NO301 \NO301 -C 12 -0 003\ Div4 \ CavotPurt\rrhur_Reeommendationl xtrer__020613.doc EXHIBIT "B" ® TfM iz at Document AIOITM - 2007 Standard Form of Agreement Between Owner and Contractor where the basis of payment is a Stipulated Sum 1 AGREEM ENT made as of the 6 day of March in the year 2013 (In words, indicate day, month and year.) ADDITIONS AND DELETIONS: The author of this document has BETWEEN the Owner: added information needed for its (Name, legal status, address and other information) completion. The author may also have revised the text of the original City of Port Arthur AIA standard form. An Additions and 444 4th Street Deletions Report that notes added Port Arthur, Texas 77641 information as well as revisions to the (409) 983 -8115 standard form text is available from the author and should be reviewed. A and the Contractor vertical line in the left margin of this (Name, legal status, address and other information) document indicates where the author has added necessary information GADV Inc. dba L & L Contractors and where the author has added to or 11988 FM 365 West deleted from the original AIA text. Beaumont, Texas 77705 This document has important legal (409) 796 -1344 consequences. Consultation with an attorney is encouraged with respect for the following Project: to its completion or modification. (Name, location and detailed description) AIA Document A201 T"' -2007, General Conditions of the Contract City of Port Arthur Transit Bus Wash Facility for Construction, is adopted in this 325 Dallas Avenue document by reference. Do not use Port Arthur, Texas 77641 with other general conditions unless Construction of new bus wash facility for the city's transit department. The new 1800 sgft, this document is modified. single story structure includes new bus washing equipment with a rain water collection system with re- circulating pumps for reduced water usage. Work also to include site development and new utility services. The Architect: (Name, legal status, address and other information) The Nelson Collaborative dba P2MG 5450 Northwest Central Drive, #330 Houston, Texas 77092 (713) 686 -7764 The Owner and Contractor agree as follows. AIA Document A101 IN - 2007. Copyright © 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 15:23:11 on 02/27/2013 under Order No.1044760190_1 which expires on 02/26/2014, and is not for resale. User Notes: (793334087) TABLE OF ARTICLES 1 THE CONTRACT DOCUMENTS 2 THE WORK OF THIS CONTRACT 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 4 CONTRACT SUM 5 PAYMENTS 6 DISPUTE RESOLUTION 7 TERMINATION OR SUSPENSION 8 MISCELLANEOUS PROVISIONS 9 ENUMERATION OF CONTRACT DOCUMENTS 10 INSURANCE AND BONDS ARTICLE 1 THE CONTRACT DOCUMENTS The Contract Documents consist of this Agreement, Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this Agreement and Modifications issued after execution of this Agreement, all of which form the Contract, and are as fully a part of the Contract as if attached to this Agreement or repeated herein. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. An enumeration of the Contract Documents, other than a Modification, appears in Article 9. ARTICLE 2 THE WORK OF THIS CONTRACT The Contractor shall fully execute the Work described in the Contract Documents, except as specifically indicated in the Contract Documents to be the responsibility of others. ARTICLE 3 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION § 3.1 The date of commencement of the Work shall be the date of this Agreement unless a different date is stated below or provision is made for the date to be fixed in a notice to proceed issued by the Owner. (Insert the date of commencement if it differs from the date of this Agreement or, if applicable, state that the date will be fixed in a notice to proceed.) a1_• • - -. .. :, ; vposiv I SSct.AN dE OF 4 LI "4--- � WR1tA - EN NO‘ieE +1) Peoces.P) If, prior to the commencement of the Work, the Owner requires time to file mortgages and other security interests, the Owner's time requirement shall be as follows: d F A- / l�cPO� i ssu AA) tl tb FR Oc e BLO § 3.2 The Contract Time shall be measured from the date of commencement. I § 3.3 The Contractor shall achieve Substantial Completion of the entire Work not later than (160 ) days from the date of commencement, or as follows: (Insert number of calendar days. Alternatively, a calendar date may be used when coordinated with the date of commencement. If appropriate, insert requirements for earlier Substantial Completion of certain portions of the Work.) AIA Document A101 r " - 2007. Copyright ©1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 2 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the t maximum extent possible under the law. This document was produced by AIA software at 15:23:11 on 02/27/2013 under Order No.1044760190_1 which expires on 02/26/2014, and is not for resale User Notes: (793334087) Portion of Work Substantial Completion Date , subject to adjustments of this Contract Time as provided in the Contract Documents. (Insert provisions, if any, for liquidated damages relating to failure to achieve Substantial Completion on time or for bonus payments for early completion of the Work) ARTICLE 4 CONTRACT SUM § 4.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor's performance of the Contract. The Contract Sum shall be Seven Hundred Ninety-One Thousand Dollars and Zero Cents ($ 791,000.00 ), subject to additions and deductions as provided in the Contract Documents. § 4.2 The Contract Sum is based upon the following alternates, if any which are described in the Contract Documents and are hereby accepted by the Owner: (State the numbers or other identification of accepted alternates. If the bidding or proposal documents permit the Owner to accept other alternates subsequent to the execution of this Agreement, attach a schedule of such other alternates showing the amount for each and the date when that amount expires.) Base Proposal $811,000.00 Cost Saving Deduction ($20,000.00) Contract Sum $791,000.00 § 4.3 Unit prices, if any: (Identify and state the unit price; state quantity limitations, if any, to which the unit price will be applicable.) Item Units and Limitations Price Per Unit ($0.00) N/A § 4.4 Allowances included in the Contract Sum, if any (Identify allowance and state exclusions, if any, from the allowance price.) Item Price N/A ARTICLE 5 PAYMENTS § 5.1 PROGRESS PAYMENTS § 5.1.1 Based upon Applications for Payment submitted to the Architect by the Contractor and Certificates for Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and elsewhere in the Contract Documents. § 5.1.2 The period covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as follows: At equal month intervals § 5.1.3 Provided that an Application for Payment is received by the Architect not later than the First day of a month, the Owner shall make payment of the certified amount to the Contractor not later than the Fifteen day of the same month. If an Application for Payment is received by the Architect after the application date fixed above, payment shall be made by the Owner not later than Fifteen (15 ) days after the Architect receives the Application for Payment. (Federal, state or local laws may require payment within a certain period of time.) § 5.1.4 Each Application for Payment shall be based on the most recent schedule of values submitted by the Contractor in accordance with the Contract Documents. The schedule of values shall allocate the entire Contract Sum among the various portions of the Work. The schedule of values shall be prepared in such form and supported by such data to AIA Document A101" — 2007. Copyright © 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Init. Institute of Architects. All rights reserved. WARNING: This Alik Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 3 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 15:23:11 on 02/27/2013 under Order No.1044760190_1 which expires on 02/26/2014, and is not for resale. User Notes: (793334087) substantiate its accuracy as the Architect may require. This schedule, unless objected to by the Architect, shall be used as a basis for reviewing the Contractor's Applications for Payment. § 5.1.5 Applications for Payment shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. § 5.1.6 Subject to other provisions of the Contract Documents, the amount of each progress payment shall be computed as follows: .1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Contract Sum allocated to that portion of the Work in the schedule of values, less retainage of Ten percent (10 %). Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute shall be included as provided in Section 7.3.9 of AIA Document A201TM -2007, General Conditions of the Contract for Construction; .2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction (or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon m writing), less retainage of Ten percent (10 %); 3 Subtract the aggregate of previous payments made by the Owner; and ,4 Subtract amounts, if any, for which the Architect has withheld or nullified a Certificate for Payment as provided in Section 9.5 of AIA Document A201 -2007. § 5.1.7 The progress payment amount determined in accordance with Section 5.1.6 shall be further modified under the following circumstances: .1 Add, upon Substantial Completion of the Work, a sum sufficient to increase the total payments to the full amount of the Contract Sum, less such amounts as the Architect shall determine for incomplete Work, retainage applicable to such work and unsettled claims; and (Section 9.8.5 of AIA Document A201-2007 requires release of applicable retainage upon Substantial Completion of Work with consent of surety, if any) .2 Add, if final completion of the Work is thereafter materially delayed through no fault of the Contractor, any additional amounts payable in accordance with Section 9.10.3 of AIA Document A201 -2007. § 5.1.8 Reduction or limitation of retainage, if any shall be as follows: (If it is intended, prior to Substantial Completion of the entire Work, to reduce or limit the retainage resulting from the percentages inserted in Sections 5.1.61 and 5.1.6 2 above, and this is not explained elsewhere in the Contract Documents, insert here provisions for such reduction or limitation) Refer to General & Supplementary Conditions of the Contract for Construction Article 9.10.2. § 5.1.9 Except with the Owner's prior approval, the Contractor shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site § 5.2 FINAL PAYMENT § 5.2.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor when .1 the Contractor has fully performed the Contract except for the Contractor's responsibility to correct Work as provided in Section 12.2.2 of AIA Document A201 -2007, and to satisfy other requirements, if any, which extend beyond fmal payment; and .2 a final Certificate for Payment has been issued by the Architect. § 5,22 The Owner's final payment to the Contractor shall be made no later than 30 days after the issuance of the Architect's final Certificate for Payment, or as follows: Refer to General & Supplementary Conditions of the Contract for Construction Article 9.10.2 and Specification Section 01 77 00 AIA Document A101 - 2007. Copyright © 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 4 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the t maximum extent possible under the law. This document was produced by AIA software at 15:23:11 on 02/27/2013 under Order No.1044760190_1 which expires on 02/26/2014, and is not for resale User Notes: (793334087) ARTICLE 6 DISPUTE RESOLUTION § 6.1 INITIAL DECISION MAKER The Architect will serve as Initial Decision Maker pursuant to Section 15.2 of AIA Document A201 -2007, unless the parties appoint below another individual, not a party to this Agreement, to serve as Initial Decision Maker. (If the parties mutually agree, insert the name, address and other contact information of the Initial Decision Maker, if other than the Architect.) § 6.2 BINDING DISPUTE RESOLUTION For any Claim subject to but not resolved by mediation pursuant to Section 15.3 of AIA Document A201 -2007, the method of binding dispute resolution shall be as follows: (Check the appropriate box. If the Owner and Contractor do not select a method of binding dispute resolution below, or do not subsequently agree in writing to a binding dispute resolution method other than litigation, Claims will be resolved by litigation in a court of competent jurisdiction) [ X ] Arbitration pursuant to Section 15.4 of AIA Document A201 -2007 [ ] Litigation in a court of competent jurisdiction [ ] Other (Specify) ARTICLE 7 TERMINATION OR SUSPENSION § 71 The Contract may be terminated by the Owner or the Contractor as provided in Article 14 of AIA Document A201-2007. § 7.2 The Work may be suspended by the Owner as provided in Article 14 of AIA Document A201 -2007. ARTICLE 8 MISCELLANEOUS PROVISIONS § 8.1 Where reference is made in this Agreement to a provision of AIA Document A201 -2007 or another Contract Document, the reference refers to that provision as amended or supplemented by other provisions of the Contract Documents. § 8.2 Payments due and unpaid under the Contract shall bear interest from the date payment is due at the rate stated below, or in the absence thereof, at the legal rate prevailing from time to time at the place where the Project is located. (Insert rate of interest agreed upon, if any.) Zero % 0 § 8.3 The Owner's`, representative: (Name, address and other information) Ms. Colleen Russell 444 4 Street Port Arthur, Texas 77641 (409) 983 -8138 (409) 982 -5318 fax russellc@portarthur.net § 8.4 The Contractor's representative: (Name, address and other information) AIA Document A101". — 2007. Copyright © 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 5 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 15:23:11 on 02/27/2013 under Order No.1044760190_1 which expires on 02/26/2014, and is not for resale. User Notes: (793334087) Mr. Kirk LeBlanc 11988 FM 365 West Beaumont, Texas 77705 (409) 796- 1344 (409) 796 -1341 landlinc @att.net § 8.5 Neither the Owner's nor the Contractor's representative shall be changed without ten days written notice to the other party. § 8.6 Other provisions: ARTICLE 9 ENUMERATION OF CONTRACT DOCUMENTS § 9.1 The Contract Documents, except for Modifications issued after execution of this Agreement are enumerated in the sections below. § 9.1.1 The Agreement is this executed AIA Document A101 -2007, Standard Form of Agreement Between Owner and Contractor. § 9.11 The General Conditions are AIA Document A201 -2007, General Conditions of the Contract for Construction. § 9.1.3 The Supplementary and other Conditions of the Contract: Document Title Date Pages Refer to the Project General Conditions of January 7, 2013 007200 - 007300 Manual the Contract for Construction, Supplementary Conditions General Conditions of the Contract for Construction, and Federally Required Contract Clauses for Construction Services § 9.1.4 The Specifications: (Either list the Specifications here or refer to an exhibit attached to this Agreement.) I Refer to the Project Manual dated January 7, 2013 Section Title Date Pages § 9.1.5 The Drawings: (Either list the Drawings here or refer to an exhibit attached to this Agreement.) Refer to the Drawings dated January 7, 2013 Number Title Date § 9.1.6 The Addenda, if any: Number Date Pages Addendum Number One January 29, 2013 1 -46 Addendum Number Two February 4, 2013 1 -14 AIA Document A101 T ' " - 2007. Copyright © 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 6 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the t maximum extent possible under the law. This document was produced by AIA software at 15:23:11 on 02/27/2013 under Order No.1044760190_1 which expires on 02/26/2014, and is not for resale User Notes: (793334087) Addendum Number Three February 6, 2013 1 -14 Portions of Addenda relating to bidding requirements are not part of the Contract Documents unless the bidding requirements are also enumerated in this Article 9. § 9.1.7 Additional documents, if any, forming part of the Contract Documents: .1 AIA Document E201TM -2007, Digital Data Protocol Exhibit, if completed by the parties, or the following: .2 Other documents, if any listed below: (List here any additional documents that are intended to form part of the Contract Documents. AIA Document A201 -2007 provides that bidding requirements such as advertisement or invitation to bid, Instructions to Bidders, sample forms and the Contractor's bid are not part of the Contract Documents unless enumerated in this Agreement. They should be listed here only if intended to be part of the Contract Documents.) ARTICLE 10 INSURANCE AND BONDS The Contractor shall purchase and maintain insurance and provide bonds as set forth in Article 11 of AIA Document A201 -2007. I (State bonding requirements, if any and limits of liability for insurance required in Article 11 of AIA Document A201- 2007) Type of insurance or bond Limit of liability or bond amount ($0.00) Refer to Project Manual, General Information page 12 -13, General Conditions of the Contract for Construction Article 11, and Supplementary Conditions of the General Conditions of the Contractor for Construction, Article 11 This Agreement entered into as of the day and year first written above. OWNER (Signature) CONTRACTOR (Signature) Mr. Floyd Johnson / City Manager Mr. Kirk LeBlanc / Manager (Printed name and title) (Printed name and title) AIA Document A101 T" - 2007. Copyright © 1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Init. Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized 7 reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the t maximum extent possible under the law. This document was produced by AR software at 15:23:11 on 02/27/2013 under Order No.1044760190_1 which expires on 02/26/2014, and is not for resale. User Notes: (793334087) Additions and Deletions Report for AIA Document A 101 rM — 2007 This Additions and Deletions Report, as defined on page 1 of the associated document, reproduces below all text the author has added to the standard form AIA document in order to complete it, as well as any text the author may have added to or deleted from the original AIA text. Added text is shown underlined. Deleted text is indicated with a horizontal line through the original AIA text. Note: This Additions and Deletions Report is provided for information purposes only and is not incorporated into or constitute any part of the associated AIA document. This Additions and Deletions Report and its associated document were generated simultaneously by AIA software at 15:23:11 on 02/27/2013. PAGE 1 AGREEM ENT made as of the 6 day of March in the year 2013 City of Port Arthur 444 4 Street Port Arthur, Texas 77641 (409) 983-8115 GADV Inc. dba L & L Contractors 11988 FM 365 West Beaumont, Texas 77705 (409) 796-1344 City of Port Arthur Transit Bus Wash Facility 325 Dallas Avenue Port Arthur, Texas 77641 Construction of new bus wash facility for the city's transit department. The new 1800 soft, single story structure includes new bus washing equipment with a rain water collection system with re- circulating pumps for reduced water usage. Work also to include site development and new utility services. The Nelson Collaborative dba P2MG 5450 Northwest Central Drive, #330 Houston, Texas 77092 (713) 686 -7764 PAGE 2 Written Notice to Proceed to be issued March 8, 2013 Written Notice to Proceed to be issued March 8, 2013 Additions and Deletions Report for AIA Document A101 T '`' - 2007. Copyright ©1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 15:23:11 on 02/27/2013 under Order No.1044760190_1 which expires on 02/26/2014, and is not for resale. User Notes: (793334087) § 3.3 The Contractor shall achieve Substantial Completion of the entire Work not later than (-L0) days from the date of commencement, or as follows: PAGE 3 § 4.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor's performance of the Contract. The Contract Sum shall be Seven Hundred Ninety -One Thousand Dollars and Zero Cents ($ 791,000.00 ), subject to additions and deductions as provided in the Contract Documents. Base Proposal $811,000.00 Cost Saving Deduction ($20,000.00) Contract Sum $791,000.00 N/A N/A At equal month intervals § 5,13 Provided that an Application for Payment is received by the Architect not later than the First day of a month, the Owner shall make payment of the certified amount to the Contractor not later than the Fifteen day of the same month, If an Application for Payment is received by the Architect after the application date fixed above, payment shall be made by the Owner not later than (—Fifteen (15 ) days after the Architect receives the Application for Payment. PAGE 4 .1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Contract Sum allocated to that portion of the Work in the schedule of values, less retainage of Ten percent (10 %). Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute shall be included as provided in Section 7.3.9 of AIA Document A201TM -2007, General Conditions of the Contract for Construction; .2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the completed construction (or, if approved in advance by the Owner, suitably stored off the site at a location agreed upon in writing), less retainage of Ten percent ( 10 %); Refer to General & Supplementary Conditions of the Contract for Construction Article 9.10.2. Refer to General & Supplementary Conditions of the Contract for Construction Article 9.10.2 and Specification Section 01 77 00 PAGE 5 [J Arbitration pursuant to Section 15.4 of AIA Document A201 -2007 Additions and Deletions Report for AIA Document A101". — 2007. Copyright ©1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and 2 International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 15:23:11 on 02/27/2013 under Order No. 1044760190_1 which expires on 02/26/2014, and is not for resale. User Notes: (793334087) Zero % 0 Ms. Colleen Russell 444 4th Street Port Arthur, Texas 77641 (409) 983-8138 (409) 982 -5318 fax russellc(a,portarthur,net PAGE 6 Mr. Kirk LeBlanc 11988 FM 365 West Beaumont, Texas 77705 (409) 796 -1344 (409) 796 -1341 landlinc@att.net § 9.1 The Contract Documents, except for Modifications issued after execution of this Agreement, Agreement are enumerated in the sections below. Refer to the Project General Conditions of January 7, 2013 007200 - 007300 Manual the. Contract for Construction, Supplementary Conditions General Conditions of the Contract for Construction, and Federally Required Contract Clauses for Construction Services Refer to the Project Manual dated January 7, 2013 Refer to the Drawings dated January 7, 2013 Addendum Number One January 29, 2013 1 -46 Addendum Number Two February 4, 2013 1 -14 Addendum Number Three February 6, 2013 1 -14 PAGE 7 Additions and Deletions Report for AIA Document A101 T"' - 2007. Copyright ©1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and 3 International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion oI it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 15:23:11 on 02/27/2013 under Order No 1044760190_1 which expires on 02/26/2014, and is not for resale. User Notes: (793334087) (State bonding requirements, if rte+ -anv and limits of liability for insurance required in Article 11 of MA Document A2O1- 2007.) Refer to Project Manual, General Information page 12 -13, General Conditions of the Contract for Construction Article 11, and Supplementary Conditions of the General Conditions of the Contractor for Construction Article 11 Mr. Floyd Johnson / City Manager Mr. Kirk LeBlanc / Manager Additions and Deletions Report for AIA Document A101". - 2007. Copyright ©1915, 1918, 1925, 1937, 1951, 1958, 1961, 1963, 1967, 1974, 1977, 1987, 1991, 1997 and 2007 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and 4 International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 15:23:11 on 02/27/2013 under Order No.1044760190_1 which expires on 02/26/2014, and is not for resale. User Notes: (793334087) Certification of Document's Authenticity AIA® Document D401 TM — 2003 I, Timothy Barnes,AIA, hereby certify, to the best of my knowledge, information and belief, that I created the attached final document simultaneously with its associated Additions and Deletions Report and this certification at 15:23:11 on 02/27/2013 under Order No. 1044760190_1 from AIA Contract Documents software and that in preparing the attached final document 1 made no changes to the original text of AIA Document A101 TM — 2007, Standard Form of Agreement Between Owner and Contractor where the basis of payment is a Stipulated Sum, as published by the AIA in its software, other than those additions and deletions shown in the associated Additions and Deletions Report. 1 'i' ,% (Signed) • j7 l a. tG -rQ,a.. of f1 R ork /tee. TugE (title) fri A X61-1 G io 13 (Dated) AIA Document D401 T" - 2003. Copyright ©1992 and 2003 by The American Institute of Architects. All rights reserved. WARNING: This AIA Document is protected by U.S. Copyright Law and International Treaties. Unauthorized reproduction or distribution of this AIA Document, or any portion of it, may 1 result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law. This document was produced by AIA software at 15:23:11 on 02/27/2013 under Order No.1044760190_1 which expires on 02/26/2014, and is not for resale. User Notes: (793334087) Federally Required Contract Clauses for Construction Services Contracts Table of Contents Fly America Requirements Buy America Requirements Cargo Preference Requirements 4 Seismic Safety Requirements Energy Conservation Requirements Clean Water Requirements Lobbying Access to Records and Reports ( Federal Changes 0, Bonding Requirements Clean Air 12. Davis - Bacon Act 13. Contract Work Hours and Safety Standards Act 14. Copeland Anti- Kickback Act 15. No Government Obligation to Third Parties 16. Program Fraud and False or Fraudulent Statements and Related Acts 17. Termination 18, Government -wide Debarment and Suspension (Non - procurement) 19. Privacy Act 20, Civil Rights Requirements 21. Breaches and Dispute Resolution 22. Disadvantaged Business Enterprises (DBE) 23. State and Local Law Disclaimer 21. Incorporation of Federal Transit Administration (FTA) Terms Bidders are strongly advised to read and adhere to all signature and contractual requirements. Requirements are specifically outlined within this Contract Agreement. Failure to comply with all requirements could result in the bid being rejected as non- responsive. THESE DOCUMENTS ON PAGES 3, 4 AND 8 OF THESE CLAUSES MUST BE SIGNED AND RETURNED AS PART OF BID FORMS FOR FEBRUARY 6, 2013 Federaily Required Contract Clauses for Construction Service Contracts 2 I FLY AMERJCA REQUIREMENTS 44LSC §4OIl8 4lCFR Part 3DI-IO Applicability to Contracts The FIy Arnerica requirements apply to the transportation of}ezmmamcprmperty,bywir, between a place in the O.S. and a place outside the U.S., or between places outside the US., when the FTA will participate ir the costs of such air transportation. T tion on a foreign air carrier is permissible when provided by a foreign air carrier under a code share agreement when the ticket identifies the U.S. aix carrier's designator code and flight number. Transportation by a foreign air carrier is also permissible if there is a bilateral or multilateral air transportation agreement to which the U.S. Governinent and a forei gmverocoeot are parties and which the Federal DOT has determined meets the requirements of the Fly America Act. Flow Down Requirements The FTy America requirements flow down from FTA reci ientyao6smbrecipieotmtmfirnttier - ontractors, who are responsible for ensuring that lower tier contractors and subcontractors are in compliance. Model Clause/ Language The relevant statutes and regulations do not mandate any specified clause or language. FTA proposes the foilowing language. f:ly America Requirements - The Contractor agrees to comply with 49 USC § 4O1lB (the "Fly America' Act) in accordance with the General Services Administration's regulations at 41 CFR Part 301-10, which provide that re ' ientyandsobrecipientyofFederalfuudmmndtheir contractors are required to use U.S. Flag air carriers for U.S. Government-financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Contractor shall subrnit, if a forei aix carrier was used, an appropriate ertification or memorandum adequately explaining why service by a U.S. flag aix carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliancc with the Fly America requirements. The Contractor agrees to mclude the requirements of this section in all subcontracts that may involve intemational air transportation. 2. BUY AMERICA REQUIREMENTS 49 U5C § 5323h> 49 CFR Part 661 \pplicability to Contracts The Buy America requirements apply to the following types of contracts: Construction Contracts and Acquisition of Goods or Rolling Stock (valued at more than $100,000). Flow Down The Buy America requirements flow down from FTA rec ients and subr ' ients to first tier conbactora in compliance. 08/09/01 .` ederath, Re ii.:5red t_ ontract Clues for Construction Services Contracts 3 anti eit , re Clause/ t..3.7.17:uage che Buy America regui.J tiort, at 49 CFR § 661.13, requires notification of the Buy America -equiremen in FTA -funded contracts, but does not specify the language to be used. The ,-, , f!owine language ha been developed by FTA. rnerca - The connact.or agrees to comply with 49 USC §532.3()) and 49 CFR Part 661, - lief) provide that Federal tunds may not be obligated unless steel, iron, and manufactured -he Jciait-As used in Fr A..nindeci projects are produced in the United States, unless a waiver has xr granted by FTA or the product is subject to a general waiver. General waivers are listed in ic ch:TR § 661 7, and nit- ude final assembly in the United States for 15 passenger vans and 15 ,,..,,I. wagons prOkioced by Chrysler Corporation, microcomputer equipment, softwaie, and small purchases I currently less than $100,000) made with capital, operating, or planning I a. ;cis. _Separate rc-qui_ri-ments for rolling stock are set out at 5323(j)(2)(C) and 49 CFR § 661.11. Ili rig stock not sume-.-t to a general ivai must be manufactured in the United States and ve a 60 percent ciomesiic content bidder or offeror must submit to the FTA recipient the appropriate Buy America certification i below ) with all bids on FTA-funded contracts, except those subject to a general waiver. Bids or offers that are not accompanied by a completed Buy America certification must be rejected as Two-respoosive. This requirement does not apply to lower tier subcontractors. 'rbfica t ion requiremi for procurement of steel, iron, or manufactured products. tr" ,,l(ontviirvice •itii 49 USC § 53230)(/) he t, or offer oi hr 4t t ertikes that it will meet the requirements of 49 USC §5323(j)(1) and the applicable reKulltions in 49 CFR Part 661. -; !tt Iva', ,ea -- . __ // , :,ry,r-cir, Jams 6,-;E:1 r,,c dha 1. &L General Contractors — -- \., ice l'retociem — --- ttr i,„„. iNi„„„ : 4!'i LISC ;42:len(' - he "ottidet or offeror h. 'b Le.rqfeas that it cannot comply with the requirements of 49 USC § 7'.?3i1,i but it may 9 13,11ilv for an exception pursuant to 49 USC § 5323(j)(2)(B) or (j)(2)(D) and 1 resiulat ions in 49 CFR § 661.7. ' _ -.---- -- _ _ -- _ g ' ,-,iri !Carpi' _ 08/09/01 , !L , uiret.i Contract Clauses for Construction Services Contract 4 tie l‘i'iec 1;),resideiri e rtilication requ I for procurement of buses, other rolling stock and associated prnen ate ,!;,, Ctnapitaticv with 49 USC §532,31i)12,)(C), ['he bidder or offeror- herehi/ certifies that it will comply with the requirements of 49 USC §. ii)(2)(C) and the regulations at 49 CFR Part 661. Ki irtmiturc LehIanc mpam Name GADv Inc &ea LAL General contractors T:l6e Vire Presidoi; tic,* cf Nori-Coarriiiinice ruith 49 USC § 5323()(2)(Ci 7.ne bidder Or offeror hereby' certifies that it cannot comply with the requirements of 49 USC § 5123-(1)(2)(C), but may qualify for an exception pursuant to 49 USC § 5323(b(2)(13) or (j)(2)(D) and the regulations in 49 CFR. § 6611. aitte 'nature rripany \lame — CARGO PREFERENCE REQUIREMENT USC § 1241 '.. 381 A pplicability to Contra cis Cargc, Preference naLliuterrients apply to all contracts involving equipment, materials, or - that may be transported. by ocean vesseli, rhe, JJgC Preference retiuire.rnents apply to all subcontracts when the subcontract may be Oveil with the tranTort of equipment, material, or commodihes by oceart vessel. ‘looe,. l AR :AD rgiiar ow. at 46 CFR § 381,7 contain suggested contract clauses, The foliewing Lliiguate u 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 5 Cargo Preference - Use of United States-Flag Vessels - The contractor agrees: a. to use privately owned United States-Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment. material, or commodities pursuant to the underlying contract to the extent such vessels are available at fair and reasonable rates for United States-Flag commercial vessels; b. to furnish within 20 working days following the date of loading for shipments originating within the United States or within 30 working days following the date of leading for shipments originating outside the United States, a legible copy of a rated, "on-board" c-cirnmercial ocean bill-of -lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590 and to the FTA recipient (through the contractor in the case of a subcontractors bill-of-lading.) c. to include these requirements in all subcontracts issued pursuant to this contract when the subcontract may involve the transport of equipment, material, or commodities by ocean vessel. 4. SEISMIC SAFETY REQUIREMENTS 42 USC § 7701 et seq. 49 CFR Part 41 Applicability to Contracts The Seismic Safety requirements apply only to contracts for the construction of new buildings or additions to existing buildings. Flow Down The Seismic Safety requirements flow down from FTA recipients and subrecipients to first tier contractors to assure compliance, with the applicable building standards for Seismic Safety, including the work performed by all subcontractors. Model Clauses,' Language The regulations do not provide suggested language for third-party contract clauses. The tolloining language has been developed by FTA. Seismic Safety - The contractor agrees that any new building or addition to an existing building will be designed and constructed in accordance with the standards for Seismic Safety required in Department of Transportation Seismic Safety Regulations 49 CFR Part 41 and will certify to compliance to the extent required by the regulation. The contractor also agrees to ensure that all work performed under this contract including work performed by a subcontractor is in compliance with the standards required by the Seismic Safety Regulations and the certification of compliance issued on the project. ENERGY CONSERVATION REQUIREMENTS 42 USC § 6321 et seq. 49 CFR Part 18 \pplicability to Contracts The Energy Conservation requirements are applicable to all contracts. 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 6 Flow Down The Energy Conservation requirements extend to all third party contractors and their contracts at every tier and subrecipients and their subagreements at every tier. Model Clause/Language No specific clause is recommended in the regulations because the Energy Conservation requirements are so dependent on the state energy conservation plan. The following language has been developed by ETA, Energy Conservation - The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. CLEAN WATER REQUIREMENTS USC § 1251 Applicability- to Contracts The Clean Water requirements apply to each contract and subcontract which exceeds $100,000 Flow Down The Clean Water requirements flow down to FTA recipients and subrecipients at every tier. Model Clause/Language 1 ,Vhile no mandatory clause is contained in the Federal Water Pollution Control Act, as amended, the following language developed by FTA contains all the mandatory requirements. Clean Water - (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 USC § 1251 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding S100,000 financed in whole or in part with Federal assistance provided by FTA. LOBBYING 31 USC § 1352 49 CFR Part 19 49 CFR Part 20 Applicability to Contracts The Lobbying requirements apply to Construction/Architectural and Engineering/Acquisition of Rolling Stock,/ Professional Service Contract/ Operational Service Contract/Turnkey c(intracts, now Down 08/09/01 Federaily Required Contract Clauses for Construction Services Contracts 7 e .obhyrng requirements mandate the maximum flow down, pursuant to Byrd Anti- Lobbying Amendment, 3IUSC § 1352(b)(5) and 49 CFR Part 19, Ap A, Section 7. Mandatory Ctause/ Language Clause and specihc ianguage therein are rnandated by 49 CFR Part 19, Appendix A. Nlodifications have been made to the Clause pursuant to Section 10 of the Lobbying Disclosure Act nflg95'PLl(4-65 [to be codified at2D5C §16Ql, - x)bbyirlg Certification and Disclosure of Lobbyi Activities for third party contractors are mandated by3lDSC §1352(6)(5) amended bn Section 1Omf the Lobbying Disdosure Act of 1995, and DOT implementing regulation, "New Restrictions on Lobbying," at 49 CFR §2O.l10/d\ Language in Lobhving Certification is mandated by 49 CFR Part 19, Appendix A, Section 7, which provides that contractors file the certification required by 49 CFR Part 20, Appendix A. \'lodifications have been made to the Lobbvmg Certification pursuant to Section 10 of the Lobbying Disclosure Act of 1995. -Uoecf''Dbmlosoreof Lobbying Activities, Standard Form-LLL set forth in Appendix B of 49 CFR Part 20, as amended by "Government wide Guidance For New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96) is mandated by 49 CFR Part 20, Appendix A. Byrd Anti-Lobbying Amendment, 31 USC § 1352, as amended by the Lobbying Disclosure Act of l995 [to he codified at2DSC §16U1,etseg.] - Contractors who apply oz bid for ao ward of 8J0O,[0Wor more shall file the certification required by 49 CFR Part 2O,"New Restrictions on Lahbying." Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress., or an employee of a member of Congress in connection with obtaining any Federal 'ntract, grant or ariy other award covered by 31 USC § 1352. Each tier shall also disclose the name of any re iytzontondertbeLnbbvbugDisclosureAc±mf1995vvbohmszomdalotbying contacts on its behalf with non-Federal funds with respect to that Federal contract, grant or \ward covered by 31 USC § 1352, Such disclosures are forwarded from tier to tier up to the recipient APPENDIX A, 49 CFR Part 20--CERTIFJCATION REGARDING LOBBYING Lertification for Contracts, Grants, Loans, artd Cooperative Agreements lo be ubiritted with encli bid or o ffe r erceedzng $108000) The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned. to any person for influencing or attempting hohzRoencemoofficeroremmp]oyaem} au agency, a Member of Longress an officer or employee of Congress. or art employee of a 08/09/01 !- ei tred Contract Clauses for Construction Services Contracts 8 mniir Congress in onnection with the awarding of any Federal contract, the making of Federal grant, the nuking of any Federal loan, the entering into of any cooperative eemevi and the t iiin continuatirni, renewal, amendment, or modification of any jPrdl grant loan, or cooperative agreement, ti any binds other than - Federal appropriated funds have been paid or will be paid to any for making lobbying contacts to an officer or employee of any agency, a Member of 'in officer or employee of Congress, or an employee of a Member of Congress in nocorion with this Federal :ontract, grant, loan, or cooperative agreement, the undersigned comp lete and sutooi r. Standard Fortrif—LLL, "Disclosure Form to Report Lobbying," in , :nrdan , 74.! with its on,srructions (as amended by 'Government wide Guidance for New tTICtions on Lobbying,' 61 Fed, Reg. 1413 (1/19/96). Note: Language in paragraph (2) herein las been modified in accordance with Section 10 of the Lobbving Disclosure Act of 1995 (PL - h-7, to he cod.i lied at 2 USC § 1601, et seq.)1 he undo.issigned shall require that the language of this certification be ]Induded in the award menu for all sub wards at all tiers (including subcontracts, subgrarits, and contracts under nts, loans, and cooperative agreements) and that all subrecipients shall certify and disclose '1' 7ins iertification is a material representation of fact upon which reliance was placed when this , lortsactinn was rnade or entered into. Submission of this certification is a prerequisite for rtakmg or entering into this transaction imposed by 31, USC § 1352 (as amended by the lo MI:tying Disclosure Act of 1995). Any person who fails to file the required certification shall be Ltject to a civil penalty of not less than 510,000 and not more than 5100,000 for each such '311u re re Pti rsuant to 31 1.1!:ik: §1352(c)( any person wino makes a prohibited expenditure ,)r ;ails to file or amend a required certification or disclosure form shall be subject to a civil r...iialLy of not less than S10,000 and not more than $100,000 for each such expenditure or I u re.1 GAM Inc dba Intr,iCtOr, General Contractors, certifies or affirms the truthfulness and accuracy of each rernent of its Ce0ifIC and disclosure, if any. In addition, the Contractor understands and 1 rees that the pi is ts of 31 USC „,§ A 3801, et eq„ ,zpp:v to this certification and disclosure, if , o 5ignatu re of Contractor's Authorized Official vane : Nice NNGent Name and Title of Contractor's Authorized Official Date C1C ESS TO P. ECOP PS AND REPORT'S [iSC § 5325 FR 8,36 (it CFR ;§ e.:3117 ritoa)liity to C. ortnitcli:' OS/09/01 Federally Required Contract Clauses for Construction Service Contracts 9 Peferenc e Chart "Requirements for Access to Records and Reports by Type of Contracts" Flow Down FTA does not require the indusion of these requirexnents m subcontracts. N lode! C|aose/Language The specified language is not mandated by the statutes or regulations referenced, but the language provided paraphrases the statutory mcncenlatorTlanguage. ccess to Records - The following access to records requirements apply to this Contract: 1 Where the Purchaser is not a State but a local government and is the FFA Recipient t or a subgrantee of the FTA Recipient in accordance with 49 C. F. R. 18.36(i), the Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller General of the United States or any of their authorized representat-ives access toany books, documents, papers and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. Cpntracturodsoagreea'pormouotbn49 C. F. R. 633.17 to provide the FTA Administrator or his authorized representatives including any PM{] Clontractor access 1:0 Contractor's records and construction sites pertaini to a major cspital project, defmed at 49 USC §5302(a)1, which is receiving federal financiai assistance through the programs described at 49 USC § 5307, 5309 or 5311. 2. Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 CFR § 633.17, Contractor agrees to provide the Purchaser, the FTA Administrator or his authori.zed representatives, including any PM0 Contractor, access to the Contractors records and construction sites pertainmg tma major capital project, defmed at 49 iSC §5102(a)1 which is receiving federal financial assistance through the programs described at 49 USC § 5307, 5309 or 5311. By definition, a major oapitalp ject excludes contracts of less than the siniplified acquisition threshold currently set at $100,000. ') Where the Purchaser enters into a negotiated contract for other than a small purchase or under the simplified acquisition threshold and is an institution of higher education, a hospital mz other non-profit organization and is the FTA Recipient ormoubgramteecftheFTA Recipient in accordance with 49 CFR § 19.48, Contractor agrees to provide the Purchaser, FTA Adrninistrator, the Comptrolier General of the United States or any of their duly authorized representatives with acce s to any books, docwnents, papers and record of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, cerpts and transcriptions. Where any Purchaser which is the FTA Reci ient or a subgrantee of the FTA Reci ient in accordance with 49 USC § 5325(a) enters into a contTact for a capital project ject or improvement (defined at49l%5C § 5302(a)1) through other than competitive bidding, the Contractor shall make available records related to the contract to the Purchaser, the Secretary of Transportation and the Comptroller General or any authorized officer or employee of any of them for the purposes of condu.trng an audit and inspection. The Contractor agrees to permit any of the foregoing parhes to reproduce by any rnearts whatsoever or to copy excerpts and trariscriptions as reasonably needed. 08/09/01 Federallv Required ContTact Clauses for Construction Services Cont.racts 10 t The Contractor agees to mairitain all books, records, accounts and reports required oozder this contract for a period of not less than three years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims wising from the performance of this contract, in which case Contractor agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related therpto. Reference 49 CFR § l�.�9/i\(lI). ~ '` / FTA does not require the inclusion of these requirements in subcontracts. iequirements for Access to Records and Reports by Types of Contract Contract | Operatio Turnkey Constructi Architectu Acquisitio Profession Characteristi nal on ral n of al Services ca ' Service Bn i eeri ' . Contract ng Stock - lState ' ) Grantees None Those None None None None . ` on a. Contracts state pass below SAT None thru to Yes, if None None None (5l00'0O0) unless Contractor non- unless unless ' unless non- competitiv non- non- ' non- b. Contracts competiti e award or competitiv competitiv competitiv above ve award if funded e award e award e award 5100,000/Ca thru pital P 'ecto 5307/5309 /5311 D Non State Grantees Those . i Yes' on Yes Yes Yes Yes a. Contracts non-state below SAT Yes Grantee Yes Yes Yes Yes (5100 pass thru to h.Contrads Contractor above 8I00,000/Ca obul ��Projects Sources of Authority, 49 USC § 5325 (a) 49 CFR § 633.17 18CFR § 18.36 (i) 9. FEDERAL CHANGES xY CrD Part ze 08/09/01 Federally Required Contract Clauses for Construcfion Services Contracts 11 Applicability toGmtracts The Federal Changes requirement applies to all contracts. Flow Down The Federal Changes requirement flows down appropriately to each applicable c •equirement, \1odel[]ause/LangumDc No specific language is mandated. The following language has been developed by FTA. Federal Changes - Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed dfrectly or by r'7ference in the Agreement (Form FTA MA (6) dated October, X999) between Purchaser and PTA as they may be aniended or promulgated from time to tirne dur the term of this .onbact, Contrnch`r'yfailoretmwocomplyobmllconsbtoteannateduJbreachofthiscwntrwcL 10. BOND!NG REQUIREMENTS Applicability tu Contracts - For those construction or facility improvement cootractowreobcomtractoexreed' $100'000' FTA may accept the bonding policy and requirements of the reci ient, provided that they meet the minirnurn requirernents for construction contracts as foliows: a, A bid guarantee from each bidder equivalent to five (5) percent of the bid price. The Hbid wiarantees" shall consist of a firm commitment such as a bid bond, certifies check, or other negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of his bid, execute such contractual documents as may be required within the time specified. b, A performance bond on the part to the Contractor for 100 percent of the contract price. A performance bond" is one executed in connection with a contract to secure fulfillment of all the ontractor's obligations under such contract. A payment bond on the part of the cont:ractor for 100 percent of the contract price. A payment bond" is one executed in connection with a contact to assure payment, as required by law, of all persons supplying labor and material in the execution of the work provided for in the untract. Payment bond arnounts required from Contra are as foliows: • ) 50% of the contract price if the contract price is not more than $1 million; 2) 40% of the contract price if the contract price is more than $1 million but not more than $5 million; or ) $25 rnillion if the contract price is more than $5 million. d. A cash deposit, certified check or other negotiable instrument may be accepted by a grantee n ben of performance and payment bonds, provided the grantee has established a procedure to 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 12 assure that I interest of FTA is adequately protected. An ixrevocable Ietter of credit would aiansatisfy the requirement for a bond. Flow Down Bonding requirements flow down to the tirst tier contractors. \|ode}[lausem/L�n Clauses/ Language FA does not prescribe specific wording to be included in third party contracts. FTA has prepared sample clauses as follows: Bid Bond Rquirernents (Construction) (a) Bid Securitv A Bid Bond must be issued by a fully qualified surety company acceptable to City of Port Arthur and listed as a cornpany currently authorized under 31 CFR §, Part 223 as possessi a (rtificate of Authorit'v as described thereunder, (b) Rights Reserved In submitting this Bid, it is understood and agreed by bidder that the right is reserved by City of Port Arthur to reject any and all bids, or part of any bid, and it is agreed that the Bid may not be withdrawn for a period nfhminetyK08 days subsequent tn the opening of bids, without the written consent of City of Port Arthur. It is also understood and agreed that if the undersigned bidder should withdraw any part or all of his bid within (ninet (90)1 days after the bid op i without the written corisent of City of Port .Arthur, shall refuse or be unable to enter into this Contract, as prov:ided above, or refuse or beunuhlebrfuoniybudegomheanducceptab}ePedbrmarceBondoeod[abmreodMaterial Payments Bonds, as provided above, or refuse or be unable to furnish adequate and acceptable insurance, as provided above, he shall forfeit his bid security to the extent of (Recipient's) damages occasioned by such withdrawal, or refusal, or inability to enter into an agreement, or provide adequate security therefor. It is further understood and agreed that to the extent the defaulting bidder's Bid Bond, Certified Check, Cashiers Check. Treasurers Check, and/or Official Bank Check excluding any incom e generated thereby which has been retained by City of Port Arthur provided in [Item x "Bid Scurit of the Instructiorts to Biddersj) shall prove inadequate tofully :recompense City of Port f\ rthur for the damages occasioned by defautt, then the undersigned bidder agrees to indemnify City of Port Arthur and pay over to City of Port Arthur the difference between the bid security and (Recipient's) total damages, so as to make City of Port Artbur whole. The undersigned understands that any rnaterial alteration of any of the above or any of the material contained on this form, other than that requested, will render the bid unresponsive. [ and Paynn*utBonding Requirements (Construction) 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 13 The Contractor shall be required to obtain performance and payment bonds as follows: .) Performance bonds The penal amourit of performance bonds shall be 100 percent of the origi al contract price, unless the City of Fort Arthur determines that a lesser ainount would be adequate for the protection of the City of Port Arthur 2. The City of Port Arthur may require additional performance bond protection when a contract price is increased, The increase in protection shall generally equal 100 percent of the increase in contract price, The City of Port Arthur rnay secure additional pratection by directing the ontractor to increase the penal amount of the existing bond or to obtam an additional bond h) Pavment bonds ihe perLal amount of the payment bonds shall equal: (U Fifty percent nf the contract price if the contract price is not more than $1 million, (ii) Forty percent of the contract price if the contract price is more than $1 milhon but not more than S5miUion,:or tiii) Two and one half million if the contract price is rnore than $5 million. 2. If the original contract price is $5 million or less, the City of Port Arthur may require dditiona1 protection as required by subparagraph 1 if the contract price is increased. rforrmrnce and Pavment Bonding Requirements (Non-Construction) The Contractor may he required to obtain perforniance and pavment bonds when necessary to protect the (Ile/ipienfs) interest, ia) The toliowing situations may warrant a performance bond: City of Port Arthur property or funds are to be provided to the conttactor for use in performing the contract or as partial compensation (as in retention of salvaged material). A contractor sells assets to or merges with another concern, and the City of Port Ar[bor, °F tbelaMerconcernamtbaoocceusmrbuinteremt,deaizeoammozaocethmtitimfinuncimDy capable Suhstantial progrcs payrnents are made before delivery of end items starts. Contracts are for dismantling, demolition, or removal of improvements. `,1)) When it is determined that a performance bond is required, the Contractor shall be required u» obtain performance bonds asfollows: 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 14 The penal amouilt of performance bonds shall be 100 percent of the original contract price, unless the City of Port Arthur determines that a lesser amount would be adequate for the p rotection of the City of Port Arthur 2 The City of Port Arthur may require additional performance bond protection when a contract rrice is increased. The increase in protection shall generally equal 100 percent of the increase in contract price. The City of Port Arthur may secure additional protection by directing the Contractor tuincrease the penal arnount of the existing bond or to obtain an additional bond. (e) A pavment bond is required only when a performance bond is required, and if the use of payment bond is in the (Recipients) interest. ki) When it is deterrruned that a payment bond is requi ired, the Contractor shall be required to 'htarn pavment bonds as follows: 1 The penal amount of payment bonds shall equal: (i) Fifty percent of the corttract price if the contract price is not more than $1 million; (ii) Forty percent of t.he contract price if the contract price is rnore than $1 million but not more than $5 niillion; or (ii) Two and one hall million if the contract price isincceaspd. Advance Payment Bonding Requirements The Contractor may be required to obtain an advance payment bond if the contract contains an advance payment provision and a performance bond is not furnished. The City of Port Arthur shall determine the amount of the advance payment bond necessary to protect the City of Port Arthur Patent Infringement Bonding Requirements (Patent Indemnity) The Contractor may be requixed to obtain a patent indemnity bond if a performance bond is not furnished and the financial responsibility of the Corthactor is uriknown or doubtful. The City of Port Arthur shall deterinine the amount of the patent indemrtity to protect the City of Port Arthur Warranty of the Work and Maintenance Bonds 1 The Contractor warrants to City of Port Arthur, the Architect and/or Engineer tbataD materials and equipment furnished under this Contract will be of highest quality and new unless otherwise specified by City of Port Arthur, free from faults and defects and in ctnformance with the Contract Documents. All work not so conforming to these standards shall be considered defective, If required by the [Pr ject Manager], the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipmertt. Federally Required Contract Clauses for Construction Services Contracts 15 The Work furrushed must be of fi.rst quality and the workmanship must be the best obtainable in the 'arious trades. The Work must be of safe, substantial and durable construction in alT respects. The Contractor hereby guarantees the Work agai t defective materials or faulty 'orkmanship for a minimuni period of one (1) year after Final Payment 6y City of Port Arthur and shall replace or repair any defective materials or equipment or faulty workmanship during the perd of the guarantee at no cost to City of Port Arthur As addiUonal security for these guarantees, the Contractor shall, prior to the release of Final Payment [as provided in Item X below], furnish separate Maintenance (or Guarantee) Bonds in form acceptable to City of Port Arthur written by the same corporate surety that provides the Performance Bond and Labor and Material Payment Bond for this Contract. These bonds shall secure the Contractor's obligation to replace or repair defective materials and faulty workmanship form minimum 1riod of one (1) year after Final Faytnent and shall be written in an amount equal to ONE }'<LJNDDE[)PER[ENT(1OU%)uf[beC(}NTRACTSlJM^amadjoshed/lfataJD. 11. CLEAN AIR 42 USC § 7401 et seq. 40 CFR § 15.61 49 CFR Part 18 Applicability to Contracts The Clean Air requixements apply to all contracts exceedi $100,000, including indefinite quantities where the amount is expected to exceed $100,000 in any year. Flow Down The Clean Air rcquirPments flow down to all subcontracts that exceed $100,000. Model Clauses/ Language No specitic anguage is required. FTA has proposed the following language, Clean Air - (1) The Contractor agrees to cornply with all applicable standards, orders or rtgu1ations issued pursuant to the Clean Air Act, as amended, 42l}GC§7408et seq. .The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exzeedinc 8100'000 financed in whole or in part with Federal assistance provided by FTA. l2. DAN/IS-BACON ACT 40D5C§8c167;276a-276a'5(1995) 29 CFR § 5 (1995) Applicability to Contract (�:onsbuc6om contracts over $2,O8O.00 Flow Down Applies to third partv contractors and suhcontractors 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 16 Model Clause /Language (The language in this clause is mandated under the DOL regulations at 29 CFR § 5.5.) (1) Minimum wages - (i) All laborers and mechanics employed or working upon the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the onstruction or development of the project), will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR Part 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination and the Davis -Bacon poster (WH -1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. I ii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may r equire the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. iv)(A) The contracting officer shall require that any class of laborers or mechanics which is not Listed in the wage determination and which is to be employed under the contract shall be .°lassified in conformance with the wage determination. The contracting officer shall approve an 08/09/01 Federallv Jequired Contract Clauses for Construction Services Contracts 17 additional classification and wage rate and fringe benefits therefor only when the following criteria have been met: (i) The work to be performed by the classification requested is not performed by a classification in the wage deterrnination; and (2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (8) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (includi the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, Washington, DC 20210. The Administrator, r an authorized representative, will approve, modify, modify, or disapprove every additiortal classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary (C) In the event the contractor, the laborers ormechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (inciudmg the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination with 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30- 30- iay renod that additional time is necessarv. (D) The wage rate [including fringe benefits where appropriate) determined pursuant to paragraphs (1)(iv) (5) or (C) of this section, shall be paid to all workers performing work in the Iassification under this contract from the first day on wbich work is performed in the Jamsdicahon. (2) Withholding - The [ insert name of grantee ] shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the contractor under this contract or any other Federal contract with the same prime ciintractor, or any other fcderaliy-assisted contract subject to Davis-Bacort prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the ful amount of wages required by the contract. In the event of tailure to pay any L3borer or mechanic, including any apprentice, tramee, or helper, employed or working on the site of the work (or under the United States Housing Act of 1937 or under the Housing Ac of 1949 in the nstrucUon or development of the project), all or part of the wages required by the contract, the [insert name of grantee [may, after written notice to the contractor, sponsor, applicant, or 08/09/01 federaUv Rcquired Conftact Clauses for Construction Services Contracts 18 take such action as may be necessary to cause the suspension of any further payment, idvance. or guarantee of funds until such violations have ceased. (}} Payrolls and basicrecnrds - (i)Pnyrollaandbasiccecnzdsrelatbzotbezebz be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project). Such records shall contain the name address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash cquivalents thereof of the types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has f oond under 29 CFR § 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintam records which show that the conintitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been ctmmumcated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the regiobatimnofapprenbceobippmogrammaodceztificudonofbabmecprmgraos,theregistration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs, (/i)(A)TbeconLzmxtors6allmohmdtvveeklyforemcbvveek in which any contract work is perfornied a copy of all pavrolls to the [irisert name of grarttee 1 for transmission to the Federal Transit Administration, The payrolls submitted shall set out accurately and completely all of the nforrnaton required to be maintained under 29 CFR Part 5. This information may be submitted i-i any form desired. Opt Form WH-347 is available for this purpose and may be purchased from the Superintendent of Docurnents (Federal Stock Number 029'0Q5-0}OI4-J),US. Government Printing Office, Washington, DC 20402. The prime contractor is responsible for the submission of copies of pavrolls by all subcontractors. ( B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the contractor or subcontractor or hi or her agent who pays or supervises the payment of the persons emploved under the contract and shall certify the foliowing: (1) That the payroll for the pay7oll period contains the informalion required to be maintained under 29 CFR Part 5 and that such information is correct and complete; (2) That each laborer or rnechanic (including each helper, apprentice. and trainee) employed on the contract during the payroll period has been paid the full weeldy wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectiv from the full wages earned, other than permissible deductions as set forth in Regulations, 29CFFl Part 3; { That each laborer or mechanic has been paid not less than the applicable wage rates and 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 19 fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (C:) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph (3)(ii)(B) of this section, (D) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code. (iii) The contractor or subcontractor shall make the records required under paragraph (3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the Federal Transit Administration or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the Federal agency may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR § 5.12. (4) Apprentices and trainees - (i) Apprentices - Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the Bureau, or it a person is employed in his or her first 90 days of probationary employment as an apprentice in such an o pprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, which is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. apprentices shall be paid fringe benefits in accordance with the provisions of the dpprenticeship program. If the apprenticeship program does not specify fringe benefits, rpprentices must be paid the full amount of fringe benefits listed on the wage determination for he applit able classtftcation, it the Administrator of the Wage and Hour Division of the U.S. 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 20 Department of Labor determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Bureau ot Apprenticeship and Training, or a State Apprenticeship Agency recognized by the Bureau, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. i) Trainees - Except as provided in 29 CFR § 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal - ertification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed_ In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved, (iii) Equal employment opportunity - The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30. (5) Compliance with Copeland Act requirements - The contractor shall comply with the requirements of 29 CFR Part 3, which are incorporated by reference in this contract. (6) Subcontracts - The contractor or subcontractor shall insert in any subcontracts the clauses ontained in 29 CFR § 5.5(a)(1) through (10) and such other clauses as the Federal Transit Administration may by appropriate instructions require, and also a clause requiring the ,ubcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR § 5.5. 08/09/01 Federafl Required Contract Clauses for Construction Services Contracts 21 C7) Contractterminadon:debaoment - A breach of the contract clauses in 29 CFR § 5.5 may be grounds or terrnination of the corthact, and for debarment as a contractor and a subcontractor as provided in 29 CFR § 5.12. (8) Compliance with Davis-Bacon and Related Actreqpirenments - ADzol' and interpretations of the Davis-Bacon and Related Acts contained bu%gCPIl Parts 1,3,and 5 are hrein inorporated by reference in this contract, (v) Disputes concerning labor standards - Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in%9 CFD Parts 5'6, and 7 Disputes within the meaning of tbisc]aumeinclodedispqtembmhmeeothe contractor (or any of its subcontractors) and the contracting agencv, the U.S. Department of Lahor, or the emp1ovt or their representatives. (I0) Certification of eli ibi1lh/ - (i) By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineli 'hletob*avvmzdedGmvecnmenLcmnbmcb*bn»irtzeofmectimn3(a)mfthe flavis-Bacon Act or 29 CFR §5.l2(a)O). (ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a G3vernment contract by virtue of section 3(a) of the Davis-BocnoActor%9CFRG5J2(a)(1). (di) The pertaltv for niaking faise statements is prescribed in the U.S. Criminal Code, 18 USC § 1001. 13. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT 40 USC § 327 -333 (1995) 29 CFR § 5 (1995) 29 CFR § 1926 (1995) .pp1icabiliti, to Contracts �ecbonIO2of the Act, which deals with overtime r ' ements, applies to: all construction contracts in excess of $2,000 and; - all turnkey, rolling stock and operational contracts (excluding contracts for transportation services) bo excess of$2 (The dollar threshold for this requirement is contained in the current regulation 29 CFR § 5.15.) Section 107 of the Act that deals with OSHA requirements applies to construction contracts in excess of $2,000 only, The requirements of this section do not apply to contracts or subcontracts for the purchase of supplies or materials or articles normally available on the open market. How Down /\pp/iee to thi dFmrtyconhrect*rsaodoubcnoLruckzrs. 08/09/01 Federally Required Contract Clauses for Construction Service Contracts 22 Model Clauses/ Language Fursuant to Section 102 (Overtime): These clauses are specifically mandated under DOL regulation 29 CFR § 5.5 and when preparing a construction contract in excess of S2,000 these clauses should be used bn 'oo��mo with the [luvis'BaoonAct clauses mo discussed previously, For nVncoomtmxc�contracts, om' this is the onlv ection reqwred along with the payroll section.) 1) Overtime requirernents No contractor or subcontractor contracting for any part uftbe ontract work which may require or involve the employment of laborers or mechanics mbaD require or permit any such laborer or mechanic many workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate c1 pay for all hours worked in excess of fortv hours m such workweek, (2) Violation; liability for unpaid wages; liquidated damageo - Inthe event of any violation of the clause set forth in paragraph (1) of this section the contractor and any subc ntracbor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and su bcontractor shall be liable to the United States for liquidated damages. Such liquidated 1amages shall be computed with respect to each individual laborer or mechanic, includ watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this section, in the sum of $ 10 for each calendar day on which such individual was requiied or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this section. '3) Withholding for unpaid wages and hquidated danmmges - Tle/vvribeiutheoaozemfthe grantee or recipient ) shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such ontract or any other Federal contract with the same prime contractor, or any other federally- assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this section. (4) Subcontracts - The contractor or subcontractor shall insert in any subcontracts the clauses set forth in this section and also a clause requiri the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in this section. (Section 102 nonconstruction contracts should also have the foliowing provision:) ( Payrolls and basic records - (i) Payrolls and basic records relating thereto shall be maintained h the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or .i' thc proit). Such records shall contain the name, address, and social security 08/09/01 Federally Required Contract Clauses for Construction Service Contracts 23 number of each such worker, his or her correct cLassification, hourly rates of wages paid (ioc|udiogcoLewofcontribobonoorcoab;anbcimted for bona fide frmge benefits or cash equivalento thereof of the types described iri section i(b)(2)B) of the Davis-Bacon Act), dailv and weekly number of hours worked, deductions made and actual wages paid. Whenever the S of Labor has found urjder 29 CFR §5.5(m)O)(iv) that the wages o{ any laborer or mechanic include the arnount of any costs reasonably anticipated irt providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been coanmunicahpd in writing to the laborers or mechariics affected, and records which show the costs anticipated or the act cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the regiatrad000fappren+icesbipprugrammaodcertificatimoofbaineeprogroms,tbere istration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable nn/grams 5ec6ou}O7([SH4): (This sectirt is app1icabe to construction contracts only) Contract Work Hours and Safety Standards Act - (i) The Contractor agrees to comply with sc:tion 107 of the Contract t Work Hours and Safetv Standards Act, 40 USC § section 333, and applicable DOL regulauons, Safetv and Health Regulations for Construction "29 CFR Part 1926, Among other things, the Contractor agrees that it will not require any laborer or mechanic to work in unsanitary, hazardous, or dangerous surroundings or working conditions. (ii)Subconacts - The Contractor also agrees to include the requirements of this section in each subcontract. The term - subcontract" under this section is considered to refer to a person who agrees to perform any pa.rt of the labor or rnaterial requirements of a contract or construction, alteration or repair A person who undertakes to perform a portion of a contract involving the iurnishing of supplies or materials will be considered a "subcontractor" under this section if the work in question involves the performance of construction work and is to be performed: (1) ,iirectIv on or near the construction site, or (2) by the employer for the specific project oom customized basis. Thus, a supplier of materials which will become an integral part of the ■iistruction is a 'subcontractor' if the supplier fabricates or assembles the goods or materials in uestion specifically for the construction project ject and the work involved may be said to be construction activitv. If the goods or materials in question are ordinaril y sold to other customers from regular inventory, the supplier is not a "subcontractor." The requiretnents of this section do not apply to contracts or subcontracts for the purchase of supplies or materials or articles normaUv availahLe on die open market. l4.CDPELAND ANTI-KICKBACK ACT 40 USC § 276c (1995) 29 CFR § 3 (1995) 29 CFR § 5 (1995) Applicability to Contracts 08/09/01 Federally Required Contract Clauses Services Contracts 24 All construction contracts in excess of $2,000. Flow Down A ppbcable to all third party contractors and subcontractors. Ntode1 Clauses/ Language 3,1 of the Copeland Act makes it clear that the purpose of the Act is to assist in "the enforcement )t the miramum wage provisions of the Davis- Bacon Act. In keeping with this intent DOL has included a section on the Copeland Act in the mandatory language of the Davis-Bacon provisions. The language can be found at § 5.5(a)(5) of the Davis-Bacon model clauses and reads as follows: C ompliance with Co Act requirements The contractor shall comply with the requirements of 29 CFR Part 3, which are incorporated by reference in this contract. Since there is no specific statutory or regulatory requirements for additional mandatory language, l would recommend that no additional clauses are necessary for this provision. 15. NO GOVERMENT OBL1GATION TO THIRD PARTIES App!icability to Contracts Applicable to all contracts. Flow Down Not re i edbymtahabeormcgolwhooforeitherprimoaryconbmcharawrantconbractorn'thio concept should flow down to all levels to clarify, to all parties to the contract, that the Federal Cr,vernrnent does not have contrachial liabiity to third paities, absent specific written consent. >lodelCiooee/l.uoguuge While no specific language is required, FTA has developed the foliowing language. No Obligation by the Federal Government. () The Purchaser and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlving contract, absent the express written consent by the Federal Government the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the Purchaser, Contractor, or any other party (whether or not a party to that ccmtract)pertainmg to any matter resulting from the underlying contract. (2) The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. 16, FROCRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTh AND RELATED ACTS 31 USC § 3801 et seq. 49 CFR Part 31 18 USC § 1001 49 USC § 5307 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 25 .applicability to Contracts These requirements are applicable to all contracts. Flow Down These requirements flow down to contractors and subcontractors who make, present, or submit :overed claims and statements. ` todel Cause /Language These requirements have no specified language, so FTA proffers the following language. Program Fraud and False or Fraudulent Statements or Related Acts. J ) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 USC § 3801 et seq.. and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 CFR Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the 1.1. A assisted project for which this contract work is being performed. En addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. 2) The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 USC § 5307, the Government reserves the right to impose the penalties of 18 USC § 1001 and 49 USC § 5307(n)(1) on the Contractor, to the extent the Federal Government deems appropriate. The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. lie TERMINATIOI 49 USC Part 18 FTA Circular 4220.1D Applicability to Contracts All contracts (with the exception of contracts with nonprofit organizations and institutions of higher education,) in excess of $10,000 shall contain suitable provisions for termination by the grantee including the manner by which it will be effected and the basis for settlement. (For ,.ontracts with nonprofit organizations and institutions of higher education the threshold is ,100,000,) In addition, such contracts shall describe conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of .:•rcumstances beyond the control of the contractor. 08/09/01 Federallv Required Contract Clauses for Construction Services Contracts 26 Flow Down The terrmnatiori requirements flow down to all contracts in excess of $10,000 with the exception f contracts with rionprofit organizations and institutions of higher learning. 1■1ndelClaose/ Language FTA does not prescrihe the form or content of such clauses. The following are suggestions of claumeo to be used in different types ofcontracts: a. Termination for Convenience (General Provision) The City of Port Arthur may terminate this contract, in whole or in part, at any time by written notice to the Contractor when it is in the overnments best interest. The Contractor shall be paid its costs, includi contract closeout costs, and profit on work per(ormed up to the time of termination. The Contractor shall ptornptly submit its termination claim to City of Port Arthur to be paid paid the Contractor. 11 the (ontractor has any propertv m its possession belonging ing to the City of Port Arthur, the Cnntractor will account for the same, and dispose of it in the manner the City of Port Arthur directs. b. Termination for Default [Breach or Cause] (General Frovision) If the Contractor does not deliver supplies in acordance with the contract delivery schedule, or, if the contract is for services, the Contractor fails to perform in the manner cafled for in the contract, or if the Contractor fails to cornply with any other provisions of the contract, the City of Port Arthur rnay termi.nate this contract for default. Termination shall be effected by serving a notice of termination on the contractor setting forth the manner in which the Contractor is in default. The ntractor will only be paid the contract price for supplies delivered and accepted, or services p*,rfnrrnpdbnoocordancepri[bthemasooezofperformancemetfnrtbbuthecootrout. If it is later determined by the City of Port Arthur that the Contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the faul of or are beyond the control of the Contractor, the City of Port Arthur, after setting up a new delivery of prtormance scheduie, rnay allow the Contractor to continue work, or treat the termination as a termination for convenience. t Opportunity to Cure (General Provision) The City of Port Arthur in its sole discretion may, in the case of a termination for breach or default, allow the Contractor [an appropriately short period of time] in which to cure the defect. In such case, the notice of termination will state the tirne penod in which cure is perrnitted and other appropriate conditions i/ Contractor fails to remedy bo City o{ Port Arthur's matisfmrtimuthe breach mr default mr any of the terms, covenants. or conditions of this Contract within [ten (10) days] after receipt by Contractor or written notice from City of Port Arthur setting forth the nature of said breach or drfau1t, City of Port Arthur shall have the right to terminate the Contract without any further obligation to Contractor, Any such termination for default shall not in any way operate to rreclude City of Port Arthur from also pursuing all available remedies against Contractor and its sureties for said breach or default. 08/09/01 Federally Required Contract Ciauses for Construction Services Contracts 27 d. Waiver of Remedies for any Breach In the event that City of Port Arthur elects to waive its remedies for any hreach by Contractor of any covenant, term or conditiort of this Contract, such `xaive,byCih/ofyhctActbozo6aDootlioitCItvnyPmztArtbor'mxeznediesyoranyancceediog breach of that or of any other term, covenant or condition of this Contract, - iermination for Convenience (Professional or Trartsit Se Contracts) The City of Port Arthur, by written notice, may terminate this contract, in whole or in part, when it is in the Government's interest. If this contract is terminated, the Recipient shall be liable only for payment under the payment provisions of this contract for services rendered before the effective date oitermination. I. Termination for Default (Supplies and Service) If the Contractor fails to deliver supplies or to perform the services within the time specified in this contract or any extension or if the Contractor fails to comply with any other provisions of this contract, the City of Port Arthur may terminate this contract for default. The City of Port Arthur shall terminate by delivering to the Contractor a Notico of Termination spedfying the nature of the default. The Contractor will only be paid the contract price for supplies delivered and accepted, or services performed in cordance with the maimer or performance set forth in this contract. it after termination for failure to fuIfill contract obligations, it is determ.ined that the Contractor was not in default, the ri btoaodobDgatinnsmfdhepaztiammhmDtethesamnemoif[be termination had been issued for the convenience of the Recipient. g. Termination for Default (Transportation Services) If the Contractor fails to pick up the ornniodities or to perform the services, including delivery services, ' vi8z6ntbetioeopecifiedbm this contract or any extension or if the Contractor fails to cornply with any other provisions of this contract, the City of Port Arthur may terminate this contract for default. The City of Port Arthur shall terminate by delivering to the Contactor a Notice of Termination specifying the nature ot default. The Contractor will only be paid the contract price for services performed in accordance with the nianner of perform.ance set forth in this contract. if this contract is terminated while the Contractor has possession of Recipient goods, the (ontractor shall, upon direchon of the City of Port Arthur, protect and preserve the goods until surrendered to the Reupient or its agent. The Contractor and City of Port Arthur shall agree on p1vn1ent for the preservation and protection of goods. Failure to agree on an amount will be resolved under the Dispute clause. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the sarne as if the rmination had been issued for the convenience of the City of Port Arthur h Termination for Default (Conmtructioo)Ifthe Contractor refuses or fails to prosecute the work or arty separable part, with the diligence that will insure its completion within the time specified in thi contract or any extension or fails to complete the work within this time, or if the (ontractor fails to complv with any other provisions of this contract, the City of Port Arthur may terminate this contract for default. The City Port the ��nn�'uctnr Cerodnah*ospeo�v' the nature of the default. In this event, the 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 28 kecpient may take over the work and compete it by contract or otherwise, and may take possession of and use any materials, ap s, and plant on the work site necessary for omp1eting the work The Contractor and its sureties shall be liable for any dainage to the Recipient resulting from the Contractor's refusal or failure to complete the work within specified time, whether or not the Contractor's right to proceed with the work is terminated. This Iiahility indudes any increased costs incurred by the Recipient in completing the work. - [be[onbachor'nrigbtLoproceedahaDnotbeterozinatednortheContractmrcbarged with damages under this clause if- - 1. the delay in completing the work arises from unforeseeable causes beyond the control and , ,,,ithout the fault or negligence of the Contractor. Examples of such causes indude: acts of God, acts of the Recipient, acts of another Contractor in the performance of a contract with the Recipient, epidemics quarantine restrictions, strikes, freight embargoes; and 2. the contractor, within [10] days from the begi ingofartydeluy~ootibem8zeCitymfIort \rthur in writing of the causes of delay. If in the judgment of tbe City of Port Arthur, the delay is excusable, the time for completing the work shall be extended. The judgment of the City of Port Arthur shall be final and conclusive on the parties, but subject to appeal under the Disputes clauses. hi^after termination o/ the Contractor's right to proceed, itiy determined that the Contractor was not in default, or that the delay was excusable, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the Recipient. Termination for Convenience or Default (Architect and Engineering) The City of Port Arthur may terminate this contract in whole or mpart, for the Recipients convenience or because of the tailure ot the Contractor to fulfill the contract obligations. The City of Port Arthur shall terminate by dehvering to the Contractor a Notice of Termination specifyi the nature, extent, and effective date ef the termination. Upon receipt of the notice, the Contractor shall (1) immediately discontinue all services affected (unless the notice directs otherwise), and (2) deliver to the Contracting Officer all data, drawi m'ypecificaboms,zeporbo su0000�rien'and other i�ormadooand materials mcoumolmhedinper�r ' this contract, whether completed or in process. tf the termination is for the convenience of the Recipient, the Contracting Officer shall make an quitab1e adjustinent iri the contract price but shall allow no antici anticipated profit on unperformed services If the termination is for failure of the Contractor to fulfill the contract obligations, the Recipient may cornplete the work by contact or otherwise and the Contractor shall be liable for any additional cost incurred by the Recipient. if, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the terrnination had been issued for the convenience of the Recipient. O8/U9/0l Federally Required Contract Clauses for Construction Services Contracts 29 rermination for Convenience of Default The City of Port Arthur may erminate this contra t. or any portion of it, by serving a notice or termination on the Contractor. The notice shall state whether the termination is fo convenience of the City of Port Arthur or for the default of the Contractor. If the termination is for default, the notice shall state the manrier in which the contractor has failed to perform the requirements of the contract. The Contractor shall account for any propertv in its possession paid for from funds received from the Citv of Port Arthur, or property supplied to the Contractor by the City of Port Arthur If the termination is for default, the City of Port Arthur may fix the fee, if the contract provides for a ee, to be paid the contractor in proportion to the vatue, if any, of work performed up to the time of termination. The Contractor shall promptly submit its termination claim to the City of Port Arthur and the parties shall negotiate the termination settlement to be paid the Contractor. 1 f the terrni.nation is for the convenience of the City of Fort Arthur, the Contractor shall be paid its contract closeout costs, and a fee, if the contract provided for payment of a fee, in proportion to the work perforrned up to the time of termination. )f' after serving a notice of termination for defauh, the City of Port Arthur determines that the Contractor has an excusable reason for not perfo i such as strike, fire flood, events which are not the fault of and are bevond the control of the contractor, the City of Fort Arthur, after ;etting up a new work schedule, may allow the Contractor to continue work, or treat the rermination as a termination for convenience. 18,GOVGRNk8ENT'*JlDE DEBARMENT AND SUSPENSION (NON'PROCDR2MENT) 44CFR Part 29 Executive Order l2549 Applicability to Contracts Eecutive Order 12549, as implemented by 49 CFR Part 29, prohibits FTA recipients and sub- ecipientefrnoncontzacdng for goods and services from organizations that have been suspended or debarred from receivi Federaily assisted contracts. As part of their applications each year, recipients are required to submit a certification to the effect that they will not enter into contracts over Si 00,000 with suspended or debarred contractors and that they will re 're their contractors (and their subcontractors) to rnake the same certification to them. Flow Down (Contractors are required to pass this requirement on to subcontractors seeking subcontracts 5100,000. Thus, the terms 'lower tier covered partici mnL"aod"lmvvertiezoovened transaction" include both contractors and subcontractors and contracts and subcontracts over 5100,000 Model Clause/ Language (Instructions) The certification and instruction language is contained at 29 CFR Part 29, '\ppendix B, and must be included in IFB's and RFP's [for inclusion by contractors in their bids or proposals] for all contracts over $100,000, regardless of the type of contract to be awarded. ertificauon Regarding Debarment, ment, Sus nsion, and Other Responsibility Matters Lower Tier Covered Transactions (Third Party Contracts over $%U0,[N0). 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 30 nstructins for Certification l'Dv signing amdsubonttingtbisbidwrp the prospective lower tier partici ant is nrovidrng the signed certification set out below, 2, Tbecerbficatioobzdhiaclaumeisamomherial repreueotabonof{actoponvvbichrelionce vvam placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other i'emedws available to the Federal Governnient, City of F'ort Arthur may pursue available rtmedies, including suspension and/or debarment. The prospective lower tier participant shall provide immediate written notice to City of Port Arthur if at any time the prospective lower tier participant learns that its certification was crroneous when subrnitted or has become erroneous by reason of changed circumstances. 4. The terms "covered transaction," "debarred," "mnapemfed," "ineligible,' "lower tier covered tranaacdou''':''pordz\pant'''''pera000,"~lowertiercnveredtraooacticnz""principal," "proposal," and voluntarilv excluded," as used in this clause, have the meanings set out in the Definitions arid Coverage sections of rules i lementing Executive Order 12549 [49 CFR Part 29]. You may (:ontact City of Port Arthur for assistance m obtaining a copy of those regulations. 5. The prospectave tive lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier eovered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized in writing by City of Port Arthur The prospective lower tier participant further agrees by submitting this proposal that it will nclude the clause titled "Certification Regarding Debarment, Suspension, ineligibility and 'Voluntary Exclusion - Lower Tier Covered Transaction", without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. '. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not debarred, suspended, irteligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the Nonprocurement List issued by D.S. General Service Administration. 8. Nothing contained in the foregoi shail be construed to require establishment of system of records in order to render in good faith the certification re ' d by this clause. The kn wled0e arid information of a participant is not required to exceed that which is normally possessed by a p:rudent person in the ordinary course of business dealings. 8. Except for transactions authorized under Paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 31 ix suspended, debarred, ineligible, orvoinobarilvexoluded from participation in this Lraosoction'inaddihwntnaDrenedieoava8ablebo[heFederalGoveronent,Citvof Port Arthur rny pursue avii1abIe remedies including suspension and/or debarment. Regarding Debarment, Suspension, Ineli 'bilitvand\/nbozbury2xclusimo-Lcwer 'tier Covered Transaction' (I) The prospective lower tier participant certifies, by submission of this bid or proposal, that neither it nor its prindpals [as defined at 49 CFR § 29.105(p)] is presently debarred, ;uspended, proposed for debarment, declared ineligible, or voluntarily excluded from iarticipation in this transaction by any Federal department or agency. 2) When the prospeetive lower tier participant is uriable to certify to the statements in this , .:rtification, such prospective participant shall attach an explanation to this proposal. 19. PRIVACY ACT 5 USC § 552 Applicability to Contracts When a grantee maintains files on drug and alcohol enforcement activities for FTA, and those files are organized so that information could be retrieved by personal identifier, the Privacy Act requirements apply to all contracts. Flow Down The Federal Pnvac Act requirements flow down to each third party contractor and tbeir :ontracL$ at every tier. Model Clause/ Language The text of the following clause has not been mandated by statute or specific regulation, but has been developed byFTA, Contracts Involving Federal Privacy Act Requirements - The following requirements appknto the Contractor and its employees that administer any system of records on behalf of the Federal Tovernment under any contract: ) The C ontractor agrees to comply with, and assures the compliance of its employees with, the mformation restrictions and other applicable requirements of the Privacy Act of 1974, 5 USC § 552a. Among other things, the Contractor agrees to obtain the express consent of the Federal Government before the Contractor or its employees operate a system of records on behalf of the Federal Government. The Contractor understands that the requirements of the Privacy Act, induding the civil and criminal penalties for violation of that Act, apply to those individuals involved. and that failure to comply with the terms of the Privacy Act may result in termination of the underlying contract. 08/ 09/01 Federally Required Contract Clause for Coristiuction Services Contracts 32 (2.) The Contractor also agrees to include these requirements in each subcontract to administer any system of records on behalf of the Federal Government financed in whole or in part with Federal assistance provided byFTA. 2U. CIVIL RIGHTS REQUIREMENTS 29 USC §. 623, 42 USC § 2000 42DSC §hl02,42DSC §I2ll2 42 USC §lZl32'49l}SC g 5332 29 CFR Part 163O CFR Parts 60 et seq. Applicability to Contracts The Civil Rights Requirernents apply to all contracts. Flow Down The Civil Rights requirements flow down to all third partv contractors and their contracts at every tier. Model Clause/ Language The following clause was predicated on language contained at 49 CFR Part 19, Appendix A, but FTA has shorten the lengthv text. (::ivil Rights - The tolicwing requirements apply to the underlying contract: (1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 USC §20O0d section 303of the Age Discrimination Act odl975,as amended, 42l}GC §6lU2,section 202o/ the Americans with Disabilities Act of199O §l213%, and Federal transit law at49 USC § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for emplovment because of race, color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees ho comply with applicable Federal implementing megula6ono and other implementing requirements FTA may issue. (2) Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract: (a) Race, Color, Creed, National Origin, Sex - In accordance with Title Vilof the Civil Rights Act, ma amended, 42D9C § 2000e, and Federal transit laws at 49 USC §5332, the Contractor a grees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (US. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department m{Labor,"4lCFR Parts 6Oetmeq.,(which implement Executive Order No. 11246, "Equal Employment Opporturtity," as amended by Executiv Order No. 11375, 'Amending Executive Order 11246 Relating to Equal Employment *pRortozity,"42DSC§280ReonLe>'and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the futu.re affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are ernploved, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: mrnp)nynuentopgradbn0,demobonnxtracsfecrecroitoz*nturrecrnitoamnt Federally Required Contract Clauses for ConstTuction Services Contracts 33 :idvertising, lavoff or termination; rates of pay or other forms of compensation; n; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any mplcmenting requirements FTA may issue. h) Age In accordane with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 law the to ' transit § 5332, agrees !efrain from discrimination against t present and prospective employees for reason of age. In ./dditinn. the Contractor agrees to complv with any implementing requirements FTA may issue. r) - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 USC §.l2]I2, the Contractor agrees that it will comply with the requirements of U Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 CFR Part 1630, pertaining to elnp|oynnent ofper*on»vvidhdimahUi6eo.bzmddidom,tbaCmubactonaQ7eeytocooplvvvitbmny ioup\ecoeodogcequizementsh}Anmayiosoe. (3) The Contractor also agrees to include these requirements in each subcontract financed in hole or in part with Federal assstance provided by FTA, modi.fied onty if necessary to identify the affected partles. 21. BREACHES AND DISFUTE RESOLL 1 ION 4pCFR Part I8 FTA Circular 4220.10 Applicability to Contracts contracts iivexcess of $100,000 shall contain provisions or conditions which will allow for administrative, contractual, or legal remedies in instances where contractors violate or breach ontract terms, and prnvkle for such sanctions and penalties as may be appropriate. This may include provisions for bonding, penalties for late or inadequate performance, retained earnings, liquidated damages er other appropriate rneasures. 110W Down The Breaches and Dispute Resolutions requirements flow down to all tiers. Model Clauses/ Language FTA does not prescribe the form or content of such provisions. What provisions are developed will depend on the circumstances and the type of contract. Recipients should consult legal counsa)indeveloping appropriate clauses. The foliowing clauses are examples of provisions from various F7A third party contracts. l]isputew - Dimpoiesarioiog in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by the authorized representative of City of 9ortArthur'o[bd*ufe/nyloyeel,TldedecioiooshaDbafnalamdconclooiveonlemsvpiLhin[ten (10)] days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a ritten a ppeal to the (title of employee]. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The 08/09/01 Federally Rquired Contract Clauses for Construction Services Contracts 34 decision of the [title of employee] shall be binding upon the Contractor and the Contractor shall abide be the decision Performance During Dispute - Unless otherwise directed by City of Port Arthur, Contractor shall continue performance under this Contract while matters in dispute are being resolved. Uaims tor Damages Should either partv to the Contract suffer i ordamug*tmpersomor property because of any act or omission of the party or of any of his employees, agents or others lor whose acts he is legaily Iiable, a claim for damages therefor shall be made in writing to such other party within a reasonable time after the first observance of such injury of damage. Kccnedies- Unless this contract provides otherwise, all claims, counterciaims, disputes and other matters in question between the City of Port Arthur and the Contractor arising out of or relating to this agreement or its breach will be decided by arbitration if the parties mutually igiee. or in a court of competent jurisdiction within the State in which the City of Port Arthur is located, Rights and Remedies The duhes and obligations unposed by the Contract Documents and the itghts and remedies available thereunder shall be ui addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or lailure to act by the City of Port Arthur, (Architect) or Contractor shall constitute a waiver of any right or dutv afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specificallv agreed in writing. 22. DISADVANTAGED BUSINESS ENTERPRISE (DBE) 49CFIl Part 26 \pplicabilitv to Contracts DGE provisions only apply to all DOT-assisted contracts. Disadvantaged Business Enterprise Provision The Federal Fiscal Year goal has been set by City of Port Arthur in an attempt to rnatch projected procurements with available qualified disadvantaged businesses. City of Port .4rihur's8oaloforbudgetedserviceconbacts,buapwrts'mndotbezuoatesialandmupplieafoo Disadvantaged Business Enterprises have been established by City of Port Arthur as set forth by the Department of Transportation Regulations 49 CFR Part 23, March 31, 1980, and amended by Section lO6b\ of the Surface Transportation Assistance Act of 1987, and is considered pertinent many Contract Agreernent resulting from this request for proposaL If a specific DBE goal is assigned to this Contract Agreement, it will be clearly stated in the Special Specifications, and if the Contractor is found to have failed to exert sufficient, reasonable, and good faith efforts to involve DBE's in the work provided, City of Port Arthur may declare the Contractor non-complaint end in breach of Contract Agreement. 11 a goal is not stated in the Special Specifications, it will be understood that no specific goal is assigned to this 08/09/01 Federally Required Contract Clauses for Construction Service Contracts 35 [intractA Agreement �reernen (o) Policy ' It is the policy of the Department of Trarisportation and City of Port Arthur that )isadvartaged Businss Enterprises, as defined in 49 CFR Part 26, and as amended in Section 106(c) of the Surface Transportation and Uniform Relocation Assistanc Act of 1987, shall have the maximum opportunity to participate in the performance of Contract Agreement financed in whole or in part with federal funds under this Contract Agreement. Consequently, the DBE requirements of 49 CFR Part 26 and Section 106(c) of the STURAA of 1987, apply to this Contract Agreement. � nnen t The Contractor agrees to ensure that DBE's as defined irt 49 CFR Part 26 and Section 106(c) of the STURAA of 1987, have the maximum opportunity to participate in the whole or in part with federal funds provided under this Contract Agreement. In this regard, the Contractor shall take ell necessary and reasonable steps in accordance with the regulations to ensure that DBE's have the maximum opportunity to compete for and perform subcontracts. The Contractor shall not iliscriminate on the basis of race, color, national origin, religion, sex, age or physical handicap in the award and performance of subcontracts. It is further the poIic of City of Port Arthur to promote the development and increase the participation of businesses owned and controlled by disadvantaged. DBE involvement in all phases of City of Port Arthu.r's procurement activities is encouraged. (b) DBE obligation - The Contractor end its subcontractors agree to ensure that disadvantaged businesses have the maxirnum opportunity to participate m the perforniance of contracts and subcontracts financed in whole or in part with federal funds provided under the Contract Agreement. In that regard, ell Contractors and subcontractors shall take all necessary and reasonahle steps in accordance with 49 CFR Part 26 as amended, to ensure that minority husiness enterprises have the maximum opportunity to compete for end perform contracts c> Where the Contractor is found to have failed to exert sufficient reasonable and good faith efforts to involve DBE's in the work provided, the City of Port Arthur may declare the L:3ntractr noncornpIaint end in breach of Contract Agreement. id) The Contractor will keep records and documents for a reasonable time following performance of this Contract Agreement to indicate compliance With City of Port Arthur's DBE program. These records and documents will be made available et reasonable times and places for rnspection by any authorized representative of City of Port Arthur and will be submitted to City of Port Arthur upon request. e) City of Port Arthur will provide affirmative assistance as may be reasonable and necessary to assist the prime Contractor in i lementing their programs for DBE participation. The assistance may include the following upon request: Edentification of qualified DBE ° Available listing ofMinority Assistance Agencies 08/09/01 Federallv Retluired Contract Clauses for Construction Services Contracts 36 Holdmg bid conferences to emphasize requirements 2 DBE Program Definitions, as used m the Contract Agreement: a) Disadvantaged bus'ness means a small business concem: Which is at least 51 percent owned by one or more sociaily and economically disadvantaged individuals, or, in the case of any publicly owned business, at least 51 percent of the stock of `vhicb ianwomdbyoneormozeoociaDyaodeonnonnicaDrdisadraotagedbndividoals;ond Whose management and daily business operations are controlled by one or more of the sociallv and econornically disadvantaged individuals who own it. or ii. Whtch is et least 31 percent owned by one or more women individuals, or in the case of any publicly owned business, at least 51% of the stock of which is owned by one or more women individuals; and iv Whose management and daily business operations are controlled by one or more women rdividua1s who own it. (b) SmalI business concern means a small business as defined by Section 3 of the Small Business Act and Appendix B - This section is being developed to reflect the new nile in 49 CFR Part 26. 23. STATE AND LOCAL LAW DISCLATMER :\pplicahility to Contracts This disdairner appiies to all contracts. Flow Down The Disdaimer has unlimited flow down. vIode1 Clause/ Language FTA has developed the foliowing language. State and Local Law Disclaimer - The use of many of the suggested clauses are not governed by Federal law, but are significantly a8[ectod6vStabelaw.]helanguageofUzeouggeohedclaunea may need tobe modified depending on state law, and that before the suggested clauses are used in the grantees nrocurement documents, the grantees should consult with their local attorney 24. INCORPORATION OF FEDERAL }KANSITADMINlSTRATION (FTA) TERMS PTACircolar422U.lD 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 37 Applicability' to Contracts The incorporation o{FTA terms applies to all contracts, Flow Down The incorporation of has unlimited d e nco��oro 000 terms ao flow down, 11ode!Qaose/Language F'[A has developed the following incorporation of terms language: hicorporation of Federal Transit Administration (FTA) Terms - The preceding provisions nc1ude. in part. certain Standard Terms and Conditions re i d by DOT, whether or not xpress1v set forth in the preceding contract provisiorts. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1D, dated April 15, 1996, are hereby incorporated by reference. Anything to the contrary herein notwithstanding. all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any name of grantee) requests which would cause (name of grantee) to be in violation of the FTA terms and conditions 08/09/01 EXHIBIT "C" Federally Required Contract Clauses for Construction Services Contracts 1 Table of Contents 1. Fly America Requirements 2. Buy America Requirements 3. Cargo Preference Requirements 4. Seismic Safety Requirements 5. Energy Conservation Requirements 6. Clean Water Requirements 7. Lobbying 8. Access to Records and Reports 9. Federal Changes 10. Bonding Requirements 11. Clean Air 12. Davis -Bacon Act 13. Contract Work Hours and Safety Standards Act 14. Copeland Anti- Kickback Act 15. No Government Obligation to Third Parties 16. Program Fraud and False or Fraudulent Statements and Related Acts 17. Termination 18. Government -wide Debarment and Suspension (Non- procurement) 19. Privacy Act 20. Civil Rights Requirements 21. Breaches and Dispute Resolution 22. Disadvantaged Business Enterprises (DBE) 23. State and Local Law Disclaimer 24. Incorporation of Federal Transit Administration (FTA) Terms Bidders are strongly advised to read and adhere to all signature and contractual requirements. Requirements are specifically outlined within this Contract Agreement. Failure to comply with all requirements could result in the bid being rejected as non - responsive. THESE DOCUMENTS ON PAGES 3, 4 AND 8 OF THESE CLAUSES MUST BE SIGNED AND RETURNED AS PART OF BID FORMS FOR FEBRUARY 6, 2013 Federally Required Contract Clauses for Construction Services Contracts 2 1. FLY AMERICA REQUIREMENTS 49 USC § 40118 41 CFR Part 301 -10 Applicability to Contracts The Fly America requirements apply to the transportation of persons or property, by air, between a place in the U.S. and a place outside the U.S., or between places outside the U.S., when the FTA will participate in the costs of such air transportation. Transportation on a foreign air carrier is permissible when provided by a foreign air carrier under a code share agreement when the ticket identifies the U.S. air carrier's designator code and flight number. Transportation by a foreign air carrier is also permissible if there is a bilateral or multilateral air transportation agreement to which the U.S. Government and a foreign government are parties and which the Federal DOT has determined meets the requirements of the Fly America Act. Flow Down Requirements The Fly America requirements flow down from FTA recipients and subrecipients to first tier contractors, who are responsible for ensuring that lower tier contractors and subcontractors are in compliance. Model Clause/ Language The relevant statutes and regulations do not mandate any specified clause or language. FTA proposes the following language. Fly America Requirements - The Contractor agrees to comply with 49 USC § 40118 (the "Fly America" Act) in accordance with the General Services Administrations regulations at 41 CFR Part 301-10, which provide that recipients and subrecipients of Federal funds and their contractors are required to use U.S. Flag air carriers for U.S. Government - financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Contractor shall submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The Contractor agrees to include the requirements of this section in all subcontracts that may involve international air transportation. 2. BUY AMERICA REQUIREMENTS 49 USC § 5323(j) 49 CFR Part 661 Applicability to Contracts The Buy America requirements apply to the following types of contracts: Construction Contracts and Acquisition of Goods or Rolling Stock (valued at more than $100,000). Flow Down The Buy America requirements flow down from FTA recipients and subrecipients to first tier contractors, who are responsible for ensuring that lower tier contractors and subcontractors are in compliance. 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 3 Mandatory Clause/ Language The Buy America regulation, at 49 CFR § 661.13, requires notification of the Buy America requirements in FTA- funded contracts, but does not specify the language to be used. The following language has been developed by FTA. Buy America - The contractor agrees to comply with 49 USC § 53230) and 49 CFR Part 661, which provide that Federal funds may not be obligated unless steel, iron, and manufactured products used in FTA - funded projects are produced in the United States, unless a waiver has been granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 CFR § 661.7, and include final assembly in the United States for 15 passenger vans and 15 passenger wagons produced by Chrysler Corporation, microcomputer equipment, software, and small purchases (currently less than $100,000) made with capital, operating, or planning funds. Separate requirements for rolling stock are set out at 5323(j)(2)(C) and 49 CFR § 661.11. Rolling stock not subject to a general waiver must be manufactured in the United States and have a 60 percent domestic content. A bidder or offeror must submit to the FTA recipient the appropriate Buy America certification (below) with all bids on FTA - funded contracts, except those subject to a general waiver. Bids or offers that are not accompanied by a completed Buy America certification must be rejected as non - responsive. This requirement does not apply to lower tier subcontractors. Certification requirement for procurement of steel, iron, or manufactured products. Certificate of Compliance with 49 USC § 53230)(1) The bidder or offeror hereby certifies that it will meet the requirements of 49 USC § 5323(j)(1) and the applicable regulations in 49 CFR Part 661. Date 2 -6 -2013 Signature l Company Name GADV Inc dba L &L General Contractors Title Vice President Certificate of Non - Compliance with 49 LISC § 5323(j)(1) The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 USC § 5323(j)(1), but it may qualify for an exception pursuant to 49 USC § 5323(j)(2)(B) or (j)(2)(D) and the regulations in 49 CFR § 661.7. Date Signature_ C:ou,pany Name 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 4 Title Vice President Certification requirement for procurement of buses, other rolling stock and associated equipment. Certificate of Compliance with 49 USC § 5323(j)(2)(C). The bidder or offeror hereby certifies that it will comply with the requirements of 49 USC § • 5323(j)(2)(C) and the regulations at 49 CFR Part 661. Date 2- 6- 201 Signature /id eBlanc Company Name GADV Inc dba L &L General Contractors Title Vice President Certificate of Non - Compliance with 49 USC § 5323(j)(2)(C) The bidder or offeror hereby certifies that it cannot comply with the requirements of 49 USC § 5323(j)(2)(C), but may qualify for an exception pursuant to 49 USC § 5323(j)(2)(B) or (j)(2)(D) and the regulations in 49 CFR § 661.7. Date Signature Company Name Title 3. CARGO PREFERENCE REQUIREMENT'S 46 USC § 1241 46 CFR Part 381 Applicability to Contracts The Cargo Preference requirements apply to all contracts involving equipment, materials, or commodities that may be transported by ocean vessels. Flow Down The Cargo Preference requirements apply to all subcontracts when the subcontract may be involved with the transport of equipment, material, or commodities by ocean vessel. Model Clause / Language The MARAD regulations at 46 CFR § 381.7 contain suggested contract clauses. The following language is proffered by FTA. 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 5 Cargo Preference - Use of United States -Flag Vessels - The contractor agrees: a. to use privately owned United States -Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to the underlying contract to the extent such vessels are available at fair and reasonable rates for United States -Flag commercial vessels; b. to furnish within 20 working days following the date of loading for shipments originating within the United States or within 30 working days following the date of leading for shipments originating outside the United States, a legible copy of a rated, "on- board" commercial ocean bill -of - lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590 and to the FTA recipient (through the contractor in the case of a subcontractor's bill -of- lading.) c. to include these requirements in all subcontracts issued pursuant to this contract when the subcontract may involve the transport of equipment, material, or commodities by ocean vessel. 4. SEISMIC SAFETY REQUIREMENTS 42 USC § 7701 et seq. 49 CFR Part 41 Applicability to Contracts The Seismic Safety requirements apply only to contracts for the construction of new buildings or additions to existing buildings. Flow Down The Seismic Safety requirements flow down from FTA recipients and subrecipients to first tier contractors to assure compliance, with the applicable building standards for Seismic Safety, including the work performed by all subcontractors. Model Clauses/ Language The regulations do not provide suggested language for third -party contract clauses. The following language has been developed by FTA. Seismic Safety - The contractor agrees that any new building or addition to an existing building will be designed and constructed in accordance with the standards for Seismic Safety required in Department of Transportation Seismic Safety Regulations 49 CFR Part 41 and will certify to compliance to the extent required by the regulation. The contractor also agrees to ensure that all work performed under this contract including work performed by a subcontractor is in compliance with the standards required by the Seismic Safety Regulations and the certification of compliance issued on the project. 5. ENERGY CONSERVATION REQUIREMENTS 42 USC § 6321 et seq. 49 CFR Part 18 Applicability to Contracts The Energy Conservation requirements are applicable to all contracts. 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 6 Flow Down The Energy Conservation requirements extend to all third party contractors and their contracts at every tier and subrecipients and their subagreements at every tier. Model Clause /Language No specific clause is recommended in the regulations because the Energy Conservation requirements are so dependent on the state energy conservation plan. The following language has been developed by FTA. Energy Conservation - The contractor agrees to comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. 6. CLEAN WATER REQUIREMENTS 33 USC § 1251 Applicability to Contracts The Clean Water requirements apply to each contract and subcontract which exceeds $100,000. Flow Down The Clean Water requirements flow down to FTA recipients and subrecipients at every tier. Model Clause/ Language While no mandatory clause is contained in the Federal Water Pollution Control Act, as amended, the following language developed by FTA contains all the mandatory requirements. Clean Water - (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 USC § 1251 et seq. The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 7. LOBBYING 31 USC § 1352 49 CFR Part 19 49 CFR Part 20 Applicability to Contracts The Lobbying requirements apply to Construction /Architectural and Engineering /Acquisition of Rolling Stock /Professional Service Contract /Operational Service Contract /Turnkey contracts. Flow Down 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 7 The Lobbying requirements mandate the maximum flow down, pursuant to Byrd Anti- Lobbying Amendment, 31 USC § 1352(b)(5) and 49 CFR Part 19, Appendix A, Section 7. Mandatory Clause/ Language - Clause and specific language therein are mandated by 49 CFR Part 19, Appendix A. Modifications have been made to the Clause pursuant to Section 10 of the Lobbying Disclosure Act of 1995, PL 104 -65 [to be codified at 2 USC § 1601, et seq.] - Lobbying Certification and Disclosure of Lobbying Activities for third party contractors are mandated by 31 USC § 1352(b)(5), as amended by Section 10 of the Lobbying Disclosure Act of 1995, and DOT implementing regulation, New Restrictions on Lobbying," at 49 CFR § 20.110(d) - Language in Lobbying Certification is mandated by 49 CFR Part 19, Appendix A, Section 7, which provides that contractors file the certification required by 49 CFR. Part 20, Appendix A. Modifications have been made to the Lobbying Certification pursuant to Section 10 of the Lobbying Disclosure Act of 1995. - Use of "Disclosure of Lobbying Activities," Standard Form -LLL set forth in Appendix B of 49 CFR Part 20, as amended by "Government wide Guidance For New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96) is mandated by 49 CFR Part 20, Appendix A. Byrd Anti - Lobbying Amendment, 31 USC § 1352, as amended by the Lobbying Disclosure Act of 1995, PL 104 -65 [to be codified at 2 USC § 1601, et seq.] - Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR Part 20, "New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 USC § 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non - Federal funds with respect to that Federal contract, grant or award covered by 31 USC § 1352. Such disclosures are forwarded from tier to tier up to the recipient. APPENDIX A, 49 CFR Part 20 -- CERTIFICATION REGARDING LOBBYING Certification for Contracts, Grants, Loans, and Cooperative Agreements (To be submitted with each bid or offer exceeding $100,000) The undersigned [Contractor] certifies, to the best of his or her knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 8 Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for making lobbying contacts to an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form — LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions [as amended by "Government wide Guidance for New Restrictions on Lobbying," 61 Fed. Reg. 1413 (1/19/96). Note: Language in paragraph (2) herein has been modified in accordance with Section 10 of the Lobbying Disclosure Act of 1995 (PL 104 -65, to be codified at 2 USC § 1601, et seq.)] (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31, USC § 1352 (as amended by the Lobbying Disclosure Act of 1995). Any person who fails to file the required certification shall be subject to a civil penalty of not less than S10,000 and not more than $100,000 for each such failure. [Note: Pursuant to 31 USC § 1352(c)(1)- (2)(A), any person who makes a prohibited expenditure or fails to file or amend a required certification or disclosure form shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such expenditure or failure.] GADV Inc dba The Contractor,L &L General Contractors, certifies or affirms the truthfulness and accuracy of each statement of its certification and disclosure, if any. In addition, the Contractor understands and agrees that the provis of 31 USC § A 3801, et seq., apply to this certification and disclosure, if any L . Signature of Contractor's Authorized Official Kirk LeBlanc - Vice President Name and Title of Contractor's Authorized Official 2 -6 -2013 Date 8. ACCESS TO RECORDS AND REPORTS 49 USC § 5325 18 CFR § 18.36 (i) 49 CFR § 633,17 Applicability to Contracts 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 9 Reference Chart "Requirements for Access to Records and Reports by Type of Contracts" Flow Down FTA does not require the inclusion of these requirements in subcontracts. Model Clause/ Language The specified language is not mandated by the statutes or regulations referenced, but the language provided paraphrases the statutory or regulatory language. Access to Records - The following access to records requirements apply to this Contract: 1. Where the Purchaser is not a State but a local government and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 C. F. R. 18.36(i), the Contractor agrees to provide the Purchaser, the FTA Administrator, the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C. F. R. 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 USC § 5302(a)1, which is receiving federal financial assistance through the programs described at 49 USC § 5307, 5309 or 5311. 2. Where the Purchaser is a State and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 CFR § 633.17, Contractor agrees to provide the Purchaser, the FTA Administrator or his authorized representatives, including any PMO Contractor, access to the Contractor's records and construction sites pertaining to a major capital project, defined at 49 USC § 5302(a)1, which is receiving federal financial assistance through the programs described at 49 USC § 5307, 5309 or 5311. By definition, a major capital project excludes contracts of less than the simplified acquisition threshold currently set at $100,000. 3. Where the Purchaser enters into a negotiated contract for other than a small purchase or under the simplified acquisition threshold and is an institution of higher education, a hospital or other non - profit organization and is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 CFR § 19.48, Contractor agrees to provide the Purchaser, FTA Administrator, the Comptroller General of the United States or any of their duly authorized representatives with access to any books, documents, papers and record of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts and transcriptions. 4. Where any Purchaser which is the FTA Recipient or a subgrantee of the FTA Recipient in accordance with 49 USC § 5325(a) enters into a contract for a capital project or improvement (defined at 49 USC § 5302(a)1) through other than competitive bidding, the Contractor shall make available records related to the contract to the Purchaser, the Secretary of Transportation and the Comptroller General or any authorized officer or employee of any of them for the purposes of conducting an audit and inspection. 5. The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 10 6. The Contractor agrees to maintain all books, records, accounts and reports required under this contract for a period of not less than three years after the date of termination or expiration of this contract, except in the event of litigation or settlement of claims arising from the performance of this contract, in which case Contractor agrees to maintain same until the Purchaser, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Reference 49 CFR § 18.39(i)(11). 7. FTA does not require the inclusion of these requirements in subcontracts. Requirements for Access to Records and Reports by Types of Contract Contract Operatio Turnkey Constructi Architectu Acquisitio Profession Characteristi nal on ral n of al Services cs Service Engineeri Rolling Contract ng Stock 1 State Grantees None ' Those None None None None imposed on a. Contracts state pass below SAT None thru to Yes, if None None None ($100,000) unlessl Contractor non- unless unless unless non- competitiv non- non- non- b. Contracts competiti e award or ; competitiv competitiv competitiv above ve award if funded e award e award e award $100,000 / Ca thru pital Projects 5307/5309 /5311 II Non State Grantees Those Yes imposed on ; Yes Yes Yes Yes a. Contracts non -state below SAT Yes Grantee Yes Yes Yes Yes ($100,000) pass thru to b. Contracts Contractor above $100,000 /Ca pital Projects Sources of Authority: 1 49 USC § 5325 (a) 2 49 CFR § 633.17 3 18 CFR § 18.36 (i) 9. FEDERAL CHANGES 49 CFR Part 18 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 11 Applicability to Contracts The Federal Changes requirement applies to all contracts. Flow Down The Federal Changes requirement flows down appropriately to each applicable changed requirement. Model Clause/ Language No specific language is mandated. The following language has been developed by FTA. Federal Changes - Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Agreement (Form FTA MA (6) dated October, 1999) between Purchaser and FTA , as they may be amended or promulgated from time to time during the term of this contract. Contractor's failure to so comply shall constitute a material breach of this contract. 10. BONDING REQUIREMENTS Applicability to Contracts - For those construction or facility improvement contracts or subcontracts exceeding $100,000, FTA may accept the bonding policy and requirements of the recipient, provided that they meet the minimum requirements for construction contracts as follows: a. A bid guarantee from each bidder equivalent to five (5) percent of the bid price. The "bid guarantees" shall consist of a firm commitment such as a bid bond, certifies check, or other negotiable instrument accompanying a bid as assurance that the bidder will, upon acceptance of his bid, execute such contractual documents as may be required within the time specified. h. A performance bond on the part to the Contractor for 100 percent of the contract price. A "performance bond" is one executed in connection with a contract to secure fulfillment of all the contractor's obligations under such contract. c. A payment bond on the part of the contractor for 100 percent of the contract price. A 'payment bond" is one executed in connection with a contract to assure payment, as required by law, of all persons supplying labor and material in the execution of the work provided for in the contract. Payment bond amounts required from Contractors are as follows: (1) 50% of the contract price if the contract price is not more than $1 million; (2) 40% of the contract price if the contract price is more than $1 million but not more than $5 million; or (3) S2.5 million if the contract price is more than $5 million. d. A cash deposit, certified check or other negotiable instrument may be accepted by a grantee in lieu of performance and payment bonds, provided the grantee has established a procedure to 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 12 assure that the interest of FTA is adequately protected. An irrevocable letter of credit would also satisfy the requirement for a bond. Flow Down Bonding requirements flow down to the first tier contractors. Model Clauses/ Language FTA does not prescribe specific wording to be included in third party contracts. FTA has prepared sample clauses as follows: Bid Bond Requirements (Construction ) (a) Bid Security A Bid Bond must be issued by a fully qualified surety company acceptable to City of Port Arthur and listed as a company currently authorized under 31 CFR §, Part 223 as possessing a Certificate of Authority as described thereunder. (b) Rights Reserved In submitting this Bid, it is understood and agreed by bidder that the right is reserved by City of Port Arthur to reject any and all bids, or part of any bid, and it is agreed that the Bid may not be withdrawn for a period of [ninety (90)] days subsequent to the opening of bids, without the written consent of City of Port Arthur. It is also understood and agreed that if the undersigned bidder should withdraw any part or all of his bid within [ninety (90)] days after the hid opening without the written consent of City of Port Arthur, shall refuse or be unable to enter into this Contract, as provided above, or refuse or be unable to furnish adequate and acceptable Performance Bonds and Labor and Material Payments Bonds, as provided above, or refuse or be unable to furnish adequate and acceptable insurance, as provided above, he shall forfeit his bid security to the extent of (Recipient's) damages occasioned by such withdrawal, or refusal, or inability to enter into an agreement, or provide adequate security therefor. It is further understood and agreed that to the extent the defaulting bidder's Bid Bond, Certified Check, Cashier's Check, Treasurer's Check, and /or Official Bank Check (excluding any income generated thereby which has been retained by City of Port Arthur provided in [Item x "Bid Security" of the Instructions to Bidders]) shall prove inadequate to fully recompense City of Port Arthur for the damages occasioned by default, then the undersigned bidder agrees to indemnify City of Port Arthur and pay over to City of Port Arthur the difference between the bid security and (Recipient's) total damages, so as to make City of Port Arthur whole. The undersigned understands that any material alteration of any of the above or any of the material contained on this form, other than that requested, will render the bid unresponsive. Performance and Payment Bonding Requirements (Construction) 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 13 The Contractor shall be required to obtain performance and payment bonds as follows: (a) Performance bonds 1. The penal amount of performance bonds shall be 100 percent of the original contract price, unless the City of Port Arthur determines that a lesser amount would be adequate for the protection of the City of Port Arthur 2. The City of Port Arthur may require additional performance bond protection when a contract price is increased. The increase in protection shall generally equal 100 percent of the increase in contract price. The City of Port Arthur may secure additional protection by directing the Contractor to increase the penal amount of the existing bond or to obtain an additional bond. (b) Payment bonds 1. The penal amount of the payment bonds shall equal: (i) Fifty percent of the contract price if the contract price is not more than $1 million. (ii) Forty percent of the contract price if the contract price is more than $1 million but not more than $5 million; or (iii) Two and one half million if the contract price is more than $5 million. 2. If the original contract price is $5 million or less, the City of Port Arthur may require additional protection as required by subparagraph 1 if the contract price is increased. Performance and Payment Bonding Requirements (Non - Construction) The Contractor may be required to obtain performance and payment bonds when necessary to protect the (Recipient's) interest. (a) The following situations may warrant a performance bond: 1. City of Port Arthur property or funds are to be provided to the contractor for use in performing the contract or as partial compensation (as in retention of salvaged material). 2. A contractor sells assets to or merges with another concern, and the City of Port Arthur, after recognizing the latter concern as the successor in interest, desires assurance that it is financially capable. 3. Substantial progress payments are made before delivery of end items starts. 4. Contracts are for dismantling, demolition, or removal of improvements. (b) When it is determined that a performance bond is required, the Contractor shall be required to obtain performance bonds as follows: 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 14 1. The penal amount of performance bonds shall be 100 percent of the original contract price, unless the City of Port Arthur determines that a lesser amount would be adequate for the protection of the City of Port Arthur 2. The City of Port Arthur may require additional performance bond protection when a contract price is increased. The increase in protection shall generally equal 100 percent of the increase in contract price. The City of Port Arthur may secure additional protection by directing the Contractor to increase the penal amount of the existing bond or to obtain an additional bond. (c) A payment bond is required only when a performance bond is required, and if the use of payment bond is in the (Recipient's) interest. (d) When it is determined that a payment bond is required, the Contractor shall be required to obtain payment bonds as follows: 1. The penal amount of payment bonds shall equal: (i) Fifty percent of the contract price if the contract price is not more than $1 million; (ii) Forty percent of the contract price if the contract price is more than $1 million but not more than $5 million; or (iii) Two and one half million if the contract price is increased. Advance Payment Bonding Requirements The Contractor may be required to obtain an advance payment bond if the contract contains an advance payment provision and a performance bond is not furnished. The City of Port Arthur shall determine the amount of the advance payment bond necessary to protect the City of Port Arthur Patent Infringement Bonding Requirements (Patent Indemnity) The Contractor may be required to obtain a patent indemnity bond if a performance bond is not furnished and the financial responsibility of the Contractor is unknown or doubtful. The City of Port Arthur shall determine the amount of the patent indemnity to protect the City of Port Arthur Warranty of the Work and Maintenance Bonds 1. The Contractor warrants to City of Port Arthur, the Architect and /or Engineer that all materials and equipment furnished under this Contract will be of highest quality and new unless otherwise specified by City of Port Arthur, free from faults and defects and in conformance with the Contract Documents. All work not so conforming to these standards shall be considered defective. If required by the [Project Manager], the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 15 1 The Work furnished must be of first quality and the workmanship must be the best obtainable in the various trades. The Work must be of safe, substantial and durable construction in all respects. The Contractor hereby guarantees the Work against defective materials or faulty workmanship for a minimum period of one (1) year after Final Payment by City of Port Arthur and shall replace or repair any defective materials or equipment or faulty workmanship during the period of the guarantee at no cost to City of Port Arthur As additional security for these guarantees, the Contractor shall, prior to the release of Final Payment [as provided in Item X below], furnish separate Maintenance (or Guarantee) Bonds in form acceptable to City of Port Arthur written by the same corporate surety that provides the Performance Bond and Labor and Material Payment Bond for this Contract. These bonds shall secure the Contractor's obligation to replace or repair defective materials and faulty workmanship for a minimum period of one (1) year after Final Payment and shall be written in an amount equal to ONE HUNDRED PERCENT (100 %) of the CONTRACT SUM, as adjusted (if at all). 11. CLEAN AIR 42 USC § 7401 et seq. 40 CFR § 15.61 49 CFR Part 18 Applicability to Contracts The Clean Air requirements apply to all contracts exceeding $100,000, including indefinite quantities where the amount is expected to exceed $100,000 in any year. Flow Down The Clean Air requirements flow down to all subcontracts that exceed $100,000. Model Clauses/ Language No specific language is required. FTA has proposed the following language. Clean Air - (1) The Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 USC § 7401 et seq. . The Contractor agrees to report each violation to the Purchaser and understands and agrees that the Purchaser will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. (2) The Contractor also agrees to include these requirements in each subcontract exceeding S100,000 financed in whole or in part with Federal assistance provided by FTA. 12. DAVIS -BACON ACT 40 USC § &167; 276a - 276a -5 (1995) 29 CFR § 5 (1995) Applicability to Contract Construction contracts over $2,000.00 Flow Down Applies to third party contractors and subcontractors 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 16 Model Clause/ Language (The language in this clause is mandated under the DOL regulations at 29 CFR § 5.5.) (1) Minimum wages - (i) All laborers and mechanics employed or working upon the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR Part 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, That the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination and the Davis -Bacon poster (WH -1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. (ii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (iii) If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. (iv)(A) The contracting officer shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 17 additional classification and wage rate and fringe benefits therefor only when the following criteria have been met: (1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and (2) The classification is utilized in the arca by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30 -day period that additional time is necessary. (C) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination with 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30- day period that additional time is necessary. (D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (1)(iv) (B) or (C) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification. (2) Withholding - The [ insert name of grantee ] shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the contractor under this contract or any other Federal contract with the same prime contractor, or any other federally- assisted contract subject to Davis -Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), all or part of the wages required by the contract, the [ insert name of grantee ] may, after written notice to the contractor, sponsor, applicant, or 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 18 owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. (3) Payrolls and basic records - (i) Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project). Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis -Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR § 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis -Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii) (A) The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the [insert name of grantee ] for transmission to the Federal Transit Administration. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR Part 5. This information may be submitted in any form desired. Optional Form WH -347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal Stock Number 029 - 005 - 00014 -1), U.S. Government Printing Office, Washington, DC 20402. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. (B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: (1) That the payroll for the payroll period contains the information required to be maintained under 29 CFR Part 5 and that such information is correct and complete; (2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR Part 3; (3) That each laborer or mechanic has been paid not less than the applicable wage rates and 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 19 fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH -347 shall satisfy the requirement for submission of the "Statement of Compliance" required by paragraph (3)(ii)(B) of this section. (D) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code. (iii) The contractor or subcontractor shall make the records required under paragraph (3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the Federal Transit Administration or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the Federal agency may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR § 5.12. (4) Apprentices and trainees - (i) Apprentices - Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the Bureau, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, which is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator of the Wage and Hour Division of the U.S. 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 20 Department of Labor determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Bureau of Apprenticeship and Training, or a State Apprenticeship Agency recognized by the Bureau, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (ii) Trainees - Except as provided in 29 CFR § 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (iii) Equal employment opportunity - The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR Part 30. (5) Compliance with Copeland Act requirements - The contractor shall comply with the requirements of 29 CFR Part 3, which are incorporated by reference in this contract. (6) Subcontracts - The contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR § 5.5(a)(1) through (10) and such other clauses as the Federal Transit Administration may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR § 5.5. 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 21 (7) Contract termination: debarment - A breach of the contract clauses in 29 CFR § 5.5 may be ' grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR § 5.12. (8) Compliance with Davis -Bacon and Related Act requirements - All rulings and interpretations of the Davis -Bacon and Related Acts contained in 29 CFR Parts 1, 3, and 5 are herein incorporated by reference in this contract. (9) Disputes concerning labor standards - Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth m 29 CFR Parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives. (10) Certification of eligibility - (i) By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR § 5.12(a)(1). (ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR § 5.12(a)(1). (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 USC § 1001. 13. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT 40 USC § 327 -333 (1995) 29 CFR § 5 (1995) 29 CFR § 1926 (1995) Applicability to Contracts Section 102 of the Act, which deals with overtime requirements, applies to: - all construction contracts in excess of $2,000 and; - all turnkey, rolling stock and operational contracts (excluding contracts for transportation services) in excess of $2,500. (The dollar threshold for this requirement is contained in the current regulation 29 CFR § 5.15.) Section 107 of the Act that deals with OSHA requirements applies to construction contracts in excess of $2,000 only. The requirements of this section do not apply to contracts or subcontracts for the purchase of supplies or materials or articles normally available on the open market. Flow Down Applies to third party contractors and subcontractors. 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 22 Model Clauses/ Language Pursuant to Section 102 (Overtime): ( These clauses are specifically mandated under DOL regulation 29 CFR § 5.5 and when preparing a construction contract in excess of $2,000 these clauses should be used in conjunction with the Davis -Bacon Act clauses as discussed previously. For nonconstruction contracts, this is the only section required along with the payroll section.) (1) Overtime requirements - No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one -half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (2) Violation; liability for unpaid wages; liquidated damages - In the event of any violation of the clause set forth in paragraph (1) of this section the contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this section, in the sum of $ 10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this section. (3) Withholding for unpaid wages and liquidated damages - The (write in the name of the grantee or recipient) shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally - assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this section. (4) Subcontracts - The contractor or subcontractor shall insert in any subcontracts the clauses set forth in this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in this section. ( Section 102 nonconstruction contracts should also have the following provision:) (5) Payrolls and basic records - (i) Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project). Such records shall contain the name, address, and social security 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 23 number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis - Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR § 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis -Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. Section 107 (OSHA): (This section is applicable to construction contracts only) Contract Work Hours and Safety Standards Act - (i) The Contractor agrees to comply with section 107 of the Contract t Work Hours and Safety Standards Act, 40 USC § section 333, and applicable DOL regulations, " Safety and Health Regulations for Construction " 29 CFR Part 1926. Among other things, the Contractor agrees that it will not require any laborer or mechanic to work in unsanitary, hazardous, or dangerous surroundings or working conditions. (ii)Subcontracts - The Contractor also agrees to include the requirements of this section in each subcontract. The term "subcontract" under this section is considered to refer to a person who agrees to perform any part of the labor or material requirements of a contract for construction, alteration or repair. A person who undertakes to perform a portion of a contract involving the furnishing of supplies or materials will be considered a "subcontractor" under this section if the work in question involves the performance of construction work and is to be performed: (1) directly on or near the construction site, or (2) by the employer for the specific project on a customized basis. Thus, a supplier of materials which will become an integral part of the construction is a "subcontractor'' if the supplier fabricates or assembles the goods or materials in question specifically for the construction project and the work involved may be said to be construction activity. If the goods or materials in question are ordinarily sold to other customers from regular inventory, the supplier is not a "subcontractor." The requirements of this section do not apply to contracts or subcontracts for the purchase of supplies or materials or articles normally available on the open market. 14. COPELAND ANTI- KICKBACK ACT 40 USC § 276c (1995) 29 CFR § 3 (1995) 29 CFR § 5 (1995) Applicability to Contracts 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 24 All construction contracts in excess of $2,000. Flow Down Applicable to all third party contractors and subcontractors. Model Clauses /Language 3.1 of the Copeland Act makes it clear that the purpose of the Act is to assist in "the enforcement of the minimum wage provisions of the Davis- Bacon Act." In keeping with this intent DOL has included a section on the Copeland Act in the mandatory language of the Davis -Bacon provisions. The language can be found at § 5.5(a)(5) of the Davis -Bacon model clauses and reads as follows: Compliance with Copeland Act requirements - The contractor shall comply with the requirements of 29 CFR Part 3, which are incorporated by reference in this contract. Since there is no specific statutory or regulatory requirements for additional mandatory language, I would recommend that no additional clauses are necessary for this provision. 15. NO GOVERNMENT OBLIGATION TO THIRD PARTIES Applicability to Contracts Applicable to all contracts. Flow Down Not required by statute or regulation for either primary contractors or subcontractors, this concept should flow down to all levels to clarify, to all parties to the contract, that the Federal Government does not have contractual liability to third parties, absent specific written consent. Model Clause/ Language While no specific language is required, FTA has developed the following language. No Obligation by the Federal Government. (1) The Purchaser and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this contract and shall not be subject to any obligations or liabilities to the Purchaser, Contractor, or any other party (whether or not a party to that contract) pertaining to any matter resulting from the underlying contract. (2) The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. 16. PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS 31 USC § 3801 et seq. 49 CFR Part 31 18 USC § 1001 49 USC § 5307 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 25 Applicability to Contracts These requirements are applicable to all contracts. Flow Down These requirements flow down to contractors and subcontractors who make, present, or submit covered claims and statements. Model Clause/ Language These requirements have no specified language, so FTA proffers the following language. Program Fraud and False or Fraudulent Statements or Related Acts. (1) The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 USC § 3801 et seq. . and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 CFR Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying contract, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying contract or the FTA assisted project for which this contract work is being performed. In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. (2) The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 USC § 5307, the Government reserves the right to impose the penalties of 18 USC § 1001 and 49 USC § 5307(n)(1) on the Contractor, to the extent the Federal Government deems appropriate. (3) The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. 17. TERMINATION 49 USC Part 18 FTA Circular 4220.1D Applicability to Contracts All contracts (with the exception of contracts with nonprofit organizations and institutions of higher education,) in excess of $10,000 shall contain suitable provisions for termination by the grantee including the manner by which it will be effected and the basis for settlement. (For contracts with nonprofit organizations and institutions of higher education the threshold is $100,000.) In addition, such contracts shall describe conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the contractor. 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 26 Flow Down The termination requirements flow down to all contracts in excess of $10,000, with the exception of contracts with nonprofit organizations and institutions of higher learning. Model Clause/ Language FTA does not prescribe the form or content of such clauses. The following are suggestions of clauses to be used in different types of contracts: a. Termination for Convenience (General Provision) The City of Port Arthur may terminate this contract, in whole or in part, at any time by written notice to the Contractor when it is in the Government's best interest. The Contractor shall be paid its costs, including contract closeout costs, and profit on work performed up to the time of termination. The Contractor shall promptly submit its termination claim to City of Port Arthur to be paid the Contractor. If the Contractor has any property in its possession belonging to the City of Port Arthur, the Contractor will account for the same, and dispose of it in the manner the City of Port Arthur directs. b. Termination for Default [Breach or Cause] (General Provision) If the Contractor does not deliver supplies in accordance with the contract delivery schedule, or, if the contract is for services, the Contractor fails to perform in the manner called for in the contract, or if the Contractor fails to comply with any other provisions of the contract, the City of Port Arthur may terminate this contract for default. Termination shall be effected by serving a notice of termination on the contractor setting forth the manner in which the Contractor is in default. The contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the mariner of performance set forth in the contract. If it is later determined by the City of Port Arthur that the Contractor had an excusable reason for not performing, such as a strike, fire, or flood, events which are not the fault of or are beyond the control of the Contractor, the City of Port Arthur, after setting up a new delivery of performance schedule, may allow the Contractor to continue work, or treat the termination as a termination for convenience. c. Opportunity to Cure (General Provision) The City of Port Arthur in its sole discretion may, in the case of a termination for breach or default, allow the Contractor Ian appropriately short period of time] in which to cure the defect. In such case, the notice of termination will state the time period in which cure is permitted and other appropriate conditions if Contractor fails to remedy to City of Port Arthur's satisfaction the breach or default or any of the terms, covenants, or conditions of this Contract within [ten (10) days] after receipt by Contractor or written notice from City of Port Arthur setting forth the nature of said breach or default, City of Port Arthur shall have the right to terminate the Contract without any further obligation to Contractor. Any such termination for default shall not in any way operate to preclude City of Port Arthur from also pursuing all available remedies against Contractor and its sureties for said breach or default. 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 27 d. Waiver of Remedies for any Breach In the event that City of Port Arthur elects to waive its remedies for any breach by Contractor of any covenant, term or condition of this Contract, such waiver by City of Port Arthur shall not limit City of Port Arthur's remedies for any succeeding breach of that or of any other term, covenant, or condition of this Contract. c. Termination for Convenience (Professional or Transit Service Contracts) The City of Port Arthur, by written notice, may terminate this contract, in whole or in part, when it is in the Government's interest. If this contract is terminated, the Recipient shall be liable only for payment under the payment provisions of this contract for services rendered before the effective date of termination. f. Termination for Default (Supplies and Service) If the Contractor fails to deliver supplies or to perform the services within the time specified in this contract or any extension or if the Contractor fails to comply with any other provisions of this contract, the City of Port Arthur may terminate this contract for default. The City of Port Arthur shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of the default. The Contractor will only be paid the contract price for supplies delivered and accepted, or services performed in accordance with the manner or performance set forth in this contract. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Recipient. g. Termination for Default (Transportation Services) If the Contractor fails to pick up the commodities or to perform the services, including delivery services, within the time specified in this contract or any extension or if the Contractor fails to comply with any other provisions of this contract, the City of Port Arthur may terminate this contract for default. The City of Port Arthur shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of default. The Contractor will only be paid the contract price for services performed in accordance with the manner of performance set forth in this contract. I f this contract is terminated while the Contractor has possession of Recipient goods, the Contractor shall, upon direction of the City of Port Arthur, protect and preserve the goods until surrendered to the Recipient or its agent. The Contractor and City of Port Arthur shall agree on payment for the preservation and protection of goods. Failure to agree on an amount will be resolved under the Dispute clause. If, after termination for failure to fulfill contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the City of Port Arthur h. Termination for Default (Construction) If the Contractor refuses or fails to prosecute the work or any separable part, with the diligence that will insure its completion within the time specified in this contract or any extension or fails to complete the work within this time, or if the Contractor fails to comply with any other provisions of this contract, the City of Port Arthur may terminate this contract for default. The City of Port Arthur shall terminate by delivering to the Contractor a Notice of Termination specifying the nature of the default. In this event, the 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 28 Recipient may take over the work and compete it by contract or otherwise, and may take possession of and use any materials, appliances, and plant on the work site necessary for completing the work. The Contractor and its sureties shall be liable for any damage to the Recipient resulting from the Contractor's refusal or failure to complete the work within specified time, whether or not the Contractor's right to proceed with the work is terminated. This liability includes any increased costs incurred by the Recipient in completing the work. The Contractor's right to proceed shall not be terminated nor the Contractor charged with damages under this clause if- 1. the delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include: acts of God, acts of the Recipient, acts of another Contractor in the performance of a contract with the Recipient, epidemics, quarantine restrictions, strikes, freight embargoes; and 2. the contractor, within [10] days from the beginning of any delay, notifies the City of Port Arthur in writing of the causes of delay. If in the judgment of the City of Port Arthur, the delay is excusable, the time for completing the work shall be extended. The judgment of the City of Port Arthur shall be final and conclusive on the parties, but subject to appeal under the Disputes clauses. If, after termination of the Contractor's right to proceed, it is determined that the Contractor was not in default, or that the delay was excusable, the rights and obligations of the parties will be the same as if the termination had been issued for the convenience of the Recipient. i. Termination for Convenience or Default (Architect and Engineering) The City of Port Arthur may terminate this contract in whole or in part, for the Recipient's convenience or because of the failure of the Contractor to fulfill the contract obligations. The City of Port Arthur shall terminate by delivering to the Contractor a Notice of Termination specifying the nature, extent, and effective date of the termination. Upon receipt of the notice, the Contractor shall (1) immediately discontinue all services affected (unless the notice directs otherwise), and (2) deliver to the Contracting Officer all data, drawings, specifications, reports, estimates, summaries, and other information and materials accumulated in performing this contract, whether completed or in process. If the termination is for the convenience of the Recipient, the Contracting Officer shall make an equitable adjustment in the contract price but shall allow no anticipated profit on unperformed services. If the termination is for failure of the Contractor to fulfill the contract obligations, the Recipient may complete the work by contact or otherwise and the Contractor shall be liable for any additional cost incurred by the Recipient. If, after termination for failure to fulfil contract obligations, it is determined that the Contractor was not in default, the rights and obligations of the parties shall be the same as if the termination had been issued for the convenience of the Recipient. 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 29 j. Termination for Convenience of Default (Cost -Type Contracts) The City of Port Arthur may terminate this contract, or any portion of it, by serving a notice or termination on the Contractor. The notice shall state whether the termination is for convenience of the City of Port Arthur or for the default of the Contractor. If the termination is for default, the notice shall state the manner in which the contractor has failed to perform the requirements of the contract. The Contractor shall account for any property in its possession paid for from funds received from the City of Port Arthur, or property supplied to the Contractor by the City of Port Arthur If the termination is for default, the City of Port Arthur may fix the fee, if the contract provides for a fee, to be paid the contractor in proportion to the value, if any, of work performed up to the time of termination. The Contractor shall promptly submit its termination claim to the City of Port Arthur and the parties shall negotiate the termination settlement to be paid the Contractor. If the termination is for the convenience of the City of Port Arthur, the Contractor shall be paid its contract closeout costs, and a fee, if the contract provided for payment of a fee, in proportion to the work performed up to the time of termination. If, after serving a notice of termination for default, the City of Port Arthur determines that the Contractor has an excusable reason for not performing, such as strike, fire, flood, events which are not the fault of and are beyond the control of the contractor, the City of Port Arthur, after setting up a new work schedule, may allow the Contractor to continue work, or treat the termination as a termination for convenience. 18. GOVERNMENT -WIDE DEBARMENT AND SUSPENSION (NON- PROCUREMENT) 49 CFR Part 29 Executive Order 12549 Applicability to Contracts Executive Order 12549, as implemented by 49 CFR Part 29, prohibits FTA recipients and sub - recipients from contracting for goods and services from organizations that have been suspended or debarred from receiving Federally assisted contracts. As part of their applications each year, recipients are required to submit a certification to the effect that they will not enter into contracts over $100,000 with suspended or debarred contractors and that they will require their contractors (and their subcontractors) to make the same certification to them. Flow Down Contractors are required to pass this requirement on to subcontractors seeking subcontracts over $100,000. Thus, the terms "lower tier covered participant" and "lower tier covered transaction" include both contractors and subcontractors and contracts and subcontracts over S100,000. Model Clause/ Language (Instructions) The certification and instruction language is contained at 29 CFR Part 29, Appendix B, and must be included in IFB's and RFP's [for inclusion by contractors in their bids or proposals] for all contracts over 5100,000, regardless of the type of contract to be awarded. Certification Regarding Debarment, Suspension, and Other Responsibility Matters Lower Tier Covered Transactions (Third Party Contracts over $100,000). 08/ 09/ 01 Federally Required Contract Clauses for Construction Services Contracts 30 Instructions for Certification 1. By signing and submitting this bid or proposal, the prospective lower tier participant is providing the signed certification set out below . 2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, City of Port Arthur may pursue available remedies, including suspension and /or debarment. 3. The prospective lower tier participant shall provide immediate written notice to City of Port Arthur if at any time the prospective lower tier participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. 4. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered transaction, :participant,' persons, lower tier covered transaction," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549 [49 CFR Part 29]. You may contact City of Port Arthur for assistance in obtaining a copy of those regulations. 5. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized in writing by City of Port Arthur 6. The prospective lower tier participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transaction ", without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. 7. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the Nonprocurement List issued by U.S. General Service Administration. 8. Nothing contained in the foregoing shall be construed to require establishment of system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. 9. Except for transactions authorized under Paragraph 5 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 31 is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to all remedies available to the Federal Government, City of Port Arthur may pursue available remedies including suspension and /or debarment. "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transaction" (1) The prospective lower tier participant certifies, by submission of this bid or proposal, that neither it nor its "principals" [as defined at 49 CFR § 29.105(p)] is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. (2) When the prospective lower tier participant is unable to certify to the statements in this certification, such prospective participant shall attach an explanation to this proposal. 19. PRIVACY ACT 5 USC § 552 Applicability to Contracts When a grantee maintains files on drug and alcohol enforcement activities for FTA, and those files are organized so that information could be retrieved by personal identifier, the Privacy Act requirements apply to all contracts. Flow Down The Federal Privacy Act requirements flow down to each third party contractor and their contracts at every tier. Model Clause/ Language The text of the following clause has not been mandated by statute or specific regulation, but has been developed by FTA. Contracts Involving Federal Privacy Act Requirements - The following requirements apply to the Contractor and its employees that administer any system of records on behalf of the Federal Government under any contract: (1) The Contractor agrees to comply with, and assures the compliance of its employees with, the information restrictions and other applicable requirements of the Privacy Act of 1974, 5 USC § 552a. Among other things, the Contractor agrees to obtain the express consent of the Federal Government before the Contractor or its employees operate a system of records on behalf of the Federal Government. The Contractor understands that the requirements of the Privacy Act, including the civil and criminal penalties for violation of that Act, apply to those individuals involved, and that failure to comply with the terms of the Privacy Act may result in termination of the underlying contract. 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 32 (2) The Contractor also agrees to include these requirements in each subcontract to administer any system of records on behalf of the Federal Government financed in whole or in part with Federal assistance provided by FTA. 20. CIVIL RIGHTS REQUIREMENTS 29 USC § 623, 42 USC § 2000 42 USC § 6102, 42 USC § 12112 42 USC § 12132, 49 USC § 5332 29 CFR Part 1630, 41 CFR Parts 60 et seq. Applicability to Contracts The Civil Rights Requirements apply to all contracts. Flow Down The Civil Rights requirements flow down to all third party contractors and their contracts at every tier. Model Clause/ Language The following clause was predicated on language contained at 49 CFR Part 19, Appendix A, but FTA has shorten the lengthy text. Civil Rights - The following requirements apply to the underlying contract: (1) Nondiscrimination - In accordance with Title VI of the Civil Rights Act, as amended, 42 USC § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 USC § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 USC § 12132, and Federal transit law at 49 USC § 5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, age, or disability. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. (2) Equal Employment Opportunity - The following equal employment opportunity requirements apply to the underlying contract: (a) Race, Color, Creed, National Origin, Sex - In accordance with Title VII of the Civil Rights Act, as amended, 42 USC § 2000e, and Federal transit laws at 49 USC § 5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor," 41 CFR Parts 60 et seq. ., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 USC § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 33 advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (b) Age - In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 USC § 623 and Federal transit law at 49 USC § 5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (c) Disabilities - In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 USC § 12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 CFR Part 1630, pertaining to employment of persons with disabilities. In addition, the Contractor agrees to comply with any implementing requirements FTA may issue. (3) The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. 21. BREACHES AND DISPUTE RESOLUTION 49 CFR Part 18 FTA Circular 4220.1D Applicability to Contracts All contracts in excess of $100,000 shall contain provisions or conditions which will allow for administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as may be appropriate. This may include provisions for bonding, penalties for late or inadequate performance, retained earnings, liquidated damages or other appropriate measures. Flow Down The Breaches and Dispute Resolutions requirements flow down to all tiers. Model Clauses/ Language FTA does not prescribe the form or content of such provisions. What provisions are developed will depend on the circumstances and the type of contract. Recipients should consult legal counsel in developing appropriate clauses. The following clauses are examples of provisions from various FTA third party contracts. Disputes - Disputes arising in the performance of this Contract which are not resolved by agreement of the parties shall be decided in writing by the authorized representative of City of Port Arthur's [title of employee]. This decision shall be final and conclusive unless within [ten (10)] days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the [title of employee]. In connection with any such appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. The 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 34 decision of the {title of employee] shall be binding upon the Contractor and the Contractor shall abide be the decision. Performance During Dispute - Unless otherwise directed by City of Port Arthur, Contractor shall continue performance under this Contract while matters in dispute are being resolved. Claims for Damages - Should either party to the Contract suffer injury or damage to person or property because of any act or omission of the party or of any of his employees, agents or others for whose acts he is legally liable, a claim for damages therefor shall be made in writing to such other party within a reasonable time after the first observance of such injury of damage. Remedies - Unless this contract provides otherwise, all claims, counterclaims, disputes and other matters in question between the City of Port Arthur and the Contractor arising out of or relating to this agreement or its breach will be decided by arbitration if the parties mutually agree, or in a court of competent jurisdiction within the State in which the City of Port Arthur is located. Rights and Remedies - The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by the City of Port Arthur, (Architect) or Contractor shall constitute a waiver of any right or duty afforded any of them under the Contract, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing. 22. DISADVANTAGED BUSINESS ENTERPRISE (DBE) 49 CFR Part 26 Applicability to Contracts DEE provisions only apply to all DOT - assisted contracts. Disadvantaged Business Enterprise Provision 1. The Federal Fiscal Year goal has been set by City of Port Arthur in an attempt to match projected procurements with available qualified disadvantaged businesses. City of Port Arthur's goals for budgeted service contracts, bus parts, and other material and supplies for Disadvantaged Business Enterprises have been established by City of Port Arthur as set forth by the Department of Transportation Regulations 49 CFR Part 23, March 31, 1980, and amended by Section 106(c) of the Surface Transportation Assistance Act of 1987, and is considered pertinent to any Contract Agreement resulting from this request for proposal. If a specific DBE goal is assigned to this Contract Agreement, it will be clearly stated in the Special Specifications, and if the Contractor is found to have failed to exert sufficient, reasonable, and good faith efforts to involve DBE's in the work provided, City of Port Arthur may declare the Contractor non - complaint end in breach of Contract Agreement. If a goal is not stated in the Special Specifications, it will be understood that no specific goal is assigned to this 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 35 Contract Agreement. (a) Policy - It is the policy of the Department of Transportation and City of Port Arthur that Disadvantaged Business Enterprises, as defined in 49 CFR Part 26, and as amended in Section 106(c) of the Surface Transportation and Uniform Relocation Assistance Act of 1987, shall have the maximum opportunity to participate in the performance of Contract Agreement financed in whole or in part with federal funds under this Contract Agreement. Consequently, the DBE requirements of 49 CFR Part 26 and Section 106(c) of the STURAA of 1987, apply to this Contract Agreement. The Contractor agrees to ensure that DBE's as defined in 49 CFR Part 26 and Section 106(c) of the STURAA of 1987, have the maximum opportunity to participate in the whole or in part with federal funds provided under this Contract Agreement. In this regard, the Contractor shall take ell necessary and reasonable steps in accordance with the regulations to ensure that DBE's have the maximum opportunity to compete for and perform subcontracts. The Contractor shall not discriminate on the basis of race, color, national origin, religion, sex, age or physical handicap in the award and performance of subcontracts. It is further the policy of City of Port Arthur to promote the development and increase the participation of businesses owned and controlled by disadvantaged. DBE involvement in all phases of City of Port Arthur's procurement activities is encouraged. (b) DBE obligation - The Contractor end its subcontractors agree to ensure that disadvantaged businesses have the maximum opportunity to participate in the performance of contracts and subcontracts financed in whole or in part with federal funds provided under the Contract Agreement. In that regard, ell Contractors and subcontractors shall take all necessary and reasonable steps in accordance with 49 CFR Part 26 as amended, to ensure that minority business enterprises have the maximum opportunity to compete for end perform contracts. (c) Where the Contractor is found to have failed to exert sufficient reasonable and good faith efforts to involve DBE's in the work provided, the City of Port Arthur may declare the Contractor non - complaint end in breach of Contract Agreement. (d) The Contractor will keep records and documents for a reasonable time following performance of this Contract Agreement to indicate compliance With City of Port Arthur's DBE program. These records and documents will be made available et reasonable times and places for inspection by any authorized representative of City of Port Arthur and will be submitted to City of Port Arthur upon request. (e) City of Port Arthur will provide affirmative assistance as may be reasonable and necessary to assist the prime Contractor in implementing their programs for DBE participation. The assistance may include the following upon request: * Identification of qualified DBE * Available listing of Minority Assistance Agencies 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 36 * Holding bid conferences to emphasize requirements 2. DBE Program Definitions, as used in the Contract Agreement: (a) Disadvantaged business "means a small business concern ": i. Which is at least 51 percent owned by one or more socially and economically disadvantaged individuals, or, in the case of any publicly owned business, at least 51 percent of the stock of which is owned by one or more socially and economically disadvantaged individuals; and ii. Whose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it. or iii. Which is et least 51 percent owned by one or more women individuals, or in the case of any publicly owned business, at least 51% of the stock of which is owned by one or more women individuals; and iv. Whose management and daily business operations are controlled by one or more women individuals who own it. (b) "Small business concern" means a small business as defined by Section 3 of the Small Business Act and Appendix B - This section is being developed to reflect the new rule in 49 CFR Part 26. 23. STATE AND LOCAL LAW DISCLAIMER Applicability to Contracts This disclaimer applies to all contracts. Flow Down The Disclaimer has unlimited flow down. Model Clause/ Language FTA has developed the following language. State and Local Law Disclaimer - The use of many of the suggested clauses are not governed by Federal law, but are significantly affected by State law. The language of the suggested clauses may need to be modified depending on state law, and that before the suggested clauses are used in the grantees procurement documents, the grantees should consult with their local attorney. 24. INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA) TERMS FTA Circular 4220.1D 08/09/01 Federally Required Contract Clauses for Construction Services Contracts 37 Applicability to Contracts The incorporation of FTA terms applies to all contracts. Flow Down The incorporation of FTA terms has unlimited flow down. Model Clause /Language FTA has developed the following incorporation of terms language: Incorporation of Federal Transit Administration (FTA) Terms - The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1D, dated April 15,1996, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any (name of grantee) requests which would cause (name of grantee) to be in violation of the FTA terms and conditions. 08/09/01